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ONE HUNDRED-THIRD DAY

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MORNING SESSION

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Senate Chamber, Olympia, Friday, April 25, 1997

The Senate was called to order at 9:00 a.m. by President Pro Tempore Newhouse. The Secretary called the roll and announced to the President Pro Tempore that all Senators were present except Senators Brown, Horn, Kline, McAuliffe, McCaslin, McDonald, Rasmussen and Snyder. On motion of Senator Hale, Senators Horn and McCaslin were excused. On motion of Senator Franklin, Senators Brown, Kline, McAuliffe, Rasmussen and Snyder were excused..

The Sergeant at Arms Color Guard, consisting of Pages Nathan Hauber and Jocelyn Webster, presented the Colors. Senator Val Stevens offered the prayer.

MOTION

On motion of Senator Johnson, the reading of the Journal of the previous day was dispensed with and it was approved.

MESSAGES FROM THE HOUSE

April 24, 1997

MR. PRESIDENT:

The Speaker has signed:

SECOND SUBSTITUTE SENATE BILL NO. 5120,

SUBSTITUTE SENATE BILL NO. 5276,

SECOND SUBSTITUTE SENATE BILL NO. 5442,

ENGROSSED SUBSTITUTE SENATE BILL NO. 5671,

ENGROSSED SUBSTITUTE SENATE BILL NO. 5725,

SENATE BILL NO. 5736,

SUBSTITUTE SENATE BILL NO. 5783, and the same are herewith transmitted.

TIMOTHY A. MARTIN, Chief Clerk

April 24, 1997

MR. PRESIDENT:

The Speaker has signed:

SUBSTITUTE HOUSE BILL NO. 1277,

ENGROSSED SECOND SUBSTITUTE HOUSE BILL NO. 1423,

SUBSTITUTE HOUSE BILL NO. 1592,

SUBSTITUTE HOUSE BILL NO. 1657,

SUBSTITUTE HOUSE BILL NO. 2089, and the same are herewith transmitted.

TIMOTHY A. MARTIN, Chief Clerk

SIGNED BY THE PRESIDENT

The President signed:

SUBSTITUTE HOUSE BILL NO. 1277,

ENGROSSED SECOND SUBSTITUTE HOUSE BILL NO. 1423,

SUBSTITUTE HOUSE BILL NO. 1592,

SUBSTITUTE HOUSE BILL NO. 1657,

SUBSTITUTE HOUSE BILL NO. 2089.

SIGNED BY THE PRESIDENT

The President signed:

SUBSTITUTE SENATE BILL NO. 5149,

SUBSTITUTE SENATE BILL NO. 5511.

MESSAGE FROM THE HOUSE

April 24, 1997

MR. PRESIDENT:

The House insists on its position regarding the Senate amendment(s) to THIRD SUBSTITUTE HOUSE BILL NO. 3900 and asks the Senate for a conference thereon. The Speaker has appointed the following members as conferees: Representatives Sheahan, Ballasiotes and Dickerson.

TIMOTHY A. MARTIN, Chief Clerk

MOTION

On motion of Senator Johnson, the Senate granted to request of the House for a conference on Third Substitute House Bill No. 3900 and the Senate amendment(s) thereto.

APPOINTMENT OF CONFERENCE COMMITTEE

The President Pro Tempore appointed as members of the Conference Committee on Third Substitute House Bill No. 3900 and the Senate amendment(s) thereto: Senators Roach, Hargrove and Johnson.

MOTION

On motion of Senator West, the Conference Committee appointments were confirmed.

REPORT OF CONFERENCE COMMITTEE

HB 1054 April 22, 1997

Includes "New Items": YES

An act relating to the state educational trust fund

MR. PRESIDENT:

MR. SPEAKER:

We of your Conference Committee, to whom was referred HOUSE BILL NO. 1054, Educational trust fund, have had the same under consideration and we recommend that:

All previous amendments not be adopted and the following striking amendment by the Conference Committee be adopted:

Strike everything after the enacting clause and insert the following:

"Sec. 1. RCW 28B.10.821 and 1996 c 107 s 1 are each amended to read as follows:

The state educational trust fund is hereby established in the state treasury. The primary purpose of the trust is to pledge state-wide available college student assistance to needy or disadvantaged students, especially middle and high school youth, considered at-risk of dropping out of secondary education who participate in board-approved early awareness and outreach programs and who enter any accredited Washington institution of postsecondary education within two years of high school graduation.

The board shall deposit refunds and recoveries of student financial aid funds expended in prior ((biennia)) fiscal periods in such account. The board may also deposit moneys that have been contributed from other state, federal, or private sources.

Expenditures from the fund shall be for financial aid to needy or disadvantaged students. The board may annually expend such sums from the fund as may be necessary to fulfill the purposes of this section, including not more than three percent for the costs to administer aid programs supported by the fund. All earnings of investments of balances in the state educational trust fund shall be credited to the trust fund. Expenditures from the fund shall not be subject to appropriation but are subject to allotment procedures under chapter 43.88 RCW."

On page 1, line 1 of the title, after "fund;" strike the remainder of the title and insert "and amending RCW 28B.10.821.", and that the bill do pass as recommended by the Conference Committee.

Signed by Senators Winsley, Kohl, Hale; Representatives Carlson, Mason, Dunn.

MOTION

On motion of Senator Johnson, the Senate adopted the Report of the Conference Committee on House Bill No. 1054.

The President Pro Tempore declared the question before the Senate to be the roll call on the final passage of House Bill No. 1054, as recommended by the Conference Committee.

ROLL CALL

The Secretary called the roll on the final passage of House Bill No. 1054, as recommended by the Conference Committee, and the bill passed the Senate by the following vote: Yeas, 41; Nays, 0; Absent, 1; Excused, 7.

Voting yea: Senators Anderson, Bauer, Benton, Deccio, Fairley, Finkbeiner, Franklin, Fraser, Goings, Hale, Hargrove, Haugen, Heavey, Hochstatter, Jacobsen, Johnson, Kohl, Long, Loveland, Morton, Newhouse, Oke, Patterson, Prentice, Prince, Roach, Rossi, Schow, Sellar, Sheldon, Spanel, Stevens, Strannigan, Swanson, Swecker, Thibaudeau, West, Winsley, Wojahn, Wood and Zarelli - 41.

Absent: Senator McDonald - 1. Excused: Senators Brown, Horn, Kline, McAuliffe, McCaslin, Rasmussen and Snyder - 7. HOUSE BILL NO. 1054, as recommended by the Conference Committee, having received the constitutional majority, was declared passed. There being no objection, the title of the bill will stand as the title of the act.

MESSAGE FROM THE HOUSE

April 23, 1997

MR. PRESIDENT:

The House refuses to recede from its amendment(s) to SENATE BILL NO. 5253 and insists on its position and ask the Senate to concur therein, and the same are herewith transmitted.

TIMOTHY A. MARTIN, Chief Clerk

MOTION

On motion of Senator Oke, the Senate refuses to concur in the House amendment(s) to Senate Bill No. 5253, insists on its position and once again asks the House to recede therefrom.

REPORT OF CONFERENCE COMMITTEE

EHB 1581 April 24, 1997

Includes "New Items": YES

Changing provisions relating to disruptive students and offenders in schools

MR. PRESIDENT:

MR. SPEAKER:

We of your Conference Committee, to whom was referred ENGROSSED HOUSE BILL NO. 1581, Disruptive students/offenders, have had the same under consideration and we recommend that:

All previous amendments not be adopted and the following striking amendment by the Conference Committee be adopted: Strike everything after the enacting clause and insert the following:

"Sec. 1. RCW 13.40.160 and 1995 c 395 s 7 are each amended to read as follows:

(1) When the respondent is found to be a serious offender, the court shall commit the offender to the department for the standard range of disposition for the offense, as indicated in option A of schedule D-3, RCW 13.40.0357 except as provided in subsections (5) and (6) of this section.

If the court concludes, and enters reasons for its conclusion, that disposition within the standard range would effectuate a manifest injustice the court shall impose a disposition outside the standard range, as indicated in option B of schedule D-3, RCW 13.40.0357. The court's finding of manifest injustice shall be supported by clear and convincing evidence.

A disposition outside the standard range shall be determinate and shall be comprised of confinement or community supervision, or a combination thereof. When a judge finds a manifest injustice and imposes a sentence of confinement exceeding thirty days, the court shall sentence the juvenile to a maximum term, and the provisions of RCW 13.40.030(2) shall be used to determine the range. A disposition outside the standard range is appealable under RCW 13.40.230 by the state or the respondent. A disposition within the standard range is not appealable under RCW 13.40.230.

(2) Where the respondent is found to be a minor or first offender, the court shall order that the respondent serve a term of community supervision as indicated in option A or option B of schedule D-1, RCW 13.40.0357 except as provided in subsections (5) and (6) of this section. If the court determines that a disposition of community supervision would effectuate a manifest injustice the court may impose another disposition under option C of schedule D-1, RCW 13.40.0357. Except as provided in subsection (5) of this section, a disposition other than a community supervision may be imposed only after the court enters reasons upon which it bases its conclusions that imposition of community supervision would effectuate a manifest injustice. When a judge finds a manifest injustice and imposes a sentence of confinement exceeding thirty days, the court shall sentence the juvenile to a maximum term, and the provisions of RCW 13.40.030(2) shall be used to determine the range. The court's finding of manifest injustice shall be supported by clear and convincing evidence.

Except for disposition of community supervision or a disposition imposed pursuant to subsection (5) of this section, a disposition may be appealed as provided in RCW 13.40.230 by the state or the respondent. A disposition of community supervision or a disposition imposed pursuant to subsection (5) of this section may not be appealed under RCW 13.40.230.

(3) Where a respondent is found to have committed an offense for which the respondent declined to enter into a diversion agreement, the court shall impose a term of community supervision limited to the conditions allowed in a diversion agreement as provided in RCW 13.40.080(2).

(4) If a respondent is found to be a middle offender:

(a) The court shall impose a determinate disposition within the standard range(s) for such offense, as indicated in option A of schedule D-2, RCW 13.40.0357 except as provided in subsections (5) and (6) of this section. If the standard range includes a term of confinement exceeding thirty days, commitment shall be to the department for the standard range of confinement; or

(b) If the middle offender has less than 110 points, the court shall impose a determinate disposition of community supervision and/or up to thirty days confinement, as indicated in option B of schedule D-2, RCW 13.40.0357 in which case, if confinement has been imposed, the court shall state either aggravating or mitigating factors as set forth in RCW 13.40.150. If the middle offender has 110 points or more, the court may impose a disposition under option A and may suspend the disposition on the condition that the offender serve up to thirty days of confinement and follow all conditions of community supervision. If the offender violates any condition of the disposition including conditions of a probation bond, the court may impose sanctions pursuant to RCW 13.40.200 or may revoke the suspension and order execution of the disposition. The court shall give credit for any confinement time previously served if that confinement was for the offense for which the suspension is being revoked.

(c) Only if the court concludes, and enters reasons for its conclusions, that disposition as provided in subsection (4)(a) or (b) of this section would effectuate a manifest injustice, the court shall sentence the juvenile to a maximum term, and the provisions of RCW 13.40.030(2) shall be used to determine the range. The court's finding of manifest injustice shall be supported by clear and convincing evidence.

(d) A disposition pursuant to subsection (4)(c) of this section is appealable under RCW 13.40.230 by the state or the respondent. A disposition pursuant to subsection (4)(a) or (b) of this section is not appealable under RCW 13.40.230.

(5) When a serious, middle, or minor first offender is found to have committed a sex offense, other than a sex offense that is also a serious violent offense as defined by RCW 9.94A.030, and has no history of a prior sex offense, the court, on its own motion or the motion of the state or the respondent, may order an examination to determine whether the respondent is amenable to treatment.

The report of the examination shall include at a minimum the following: The respondent's version of the facts and the official version of the facts, the respondent's offense history, an assessment of problems in addition to alleged deviant behaviors, the respondent's social, educational, and employment situation, and other evaluation measures used. The report shall set forth the sources of the evaluator's information.

The examiner shall assess and report regarding the respondent's amenability to treatment and relative risk to the community. A proposed treatment plan shall be provided and shall include, at a minimum:

(a)(i) Frequency and type of contact between the offender and therapist;

(ii) Specific issues to be addressed in the treatment and description of planned treatment modalities;

(iii) Monitoring plans, including any requirements regarding living conditions, lifestyle requirements, and monitoring by family members, legal guardians, or others;

(iv) Anticipated length of treatment; and

(v) Recommended crime-related prohibitions.

The court on its own motion may order, or on a motion by the state shall order, a second examination regarding the offender's amenability to treatment. The evaluator shall be selected by the party making the motion. The defendant shall pay the cost of any second examination ordered unless the court finds the defendant to be indigent in which case the state shall pay the cost.

After receipt of reports of the examination, the court shall then consider whether the offender and the community will benefit from use of this special sex offender disposition alternative and consider the victim's opinion whether the offender should receive a treatment disposition under this section. If the court determines that this special sex offender disposition alternative is appropriate, then the court shall impose a determinate disposition within the standard range for the offense, and the court may suspend the execution of the disposition and place the offender on community supervision for up to two years. As a condition of the suspended disposition, the court may impose the conditions of community supervision and other conditions, including up to thirty days of confinement and requirements that the offender do any one or more of the following:

(b)(i) Devote time to a specific education, employment, or occupation;

(ii) Undergo available outpatient sex offender treatment for up to two years, or inpatient sex offender treatment not to exceed the standard range of confinement for that offense. A community mental health center may not be used for such treatment unless it has an appropriate program designed for sex offender treatment. The respondent shall not change sex offender treatment providers or treatment conditions without first notifying the prosecutor, the probation counselor, and the court, and shall not change providers without court approval after a hearing if the prosecutor or probation counselor object to the change;

(iii) Remain within prescribed geographical boundaries and notify the court or the probation counselor prior to any change in the offender's address, educational program, or employment;

(iv) Report to the prosecutor and the probation counselor prior to any change in a sex offender treatment provider. This change shall have prior approval by the court;

(v) Report as directed to the court and a probation counselor;

(vi) Pay all court-ordered legal financial obligations, perform community service, or any combination thereof;

(vii) Make restitution to the victim for the cost of any counseling reasonably related to the offense; ((or))

(viii) Comply with the conditions of any court-ordered probation bond; or

(ix) The court shall order that the offender may not attend the public or approved private elementary, middle, or high school attended by the victim or the victim's siblings. The parents or legal guardians of the offender are responsible for transportation or other costs associated with the offender's change of school that would otherwise be paid by the school district. The court shall send notice of the disposition and restriction on attending the same school as the victim or victim's siblings to the public or approved private school the juvenile will attend, if known, or if unknown, to the approved private schools and the public school district board of directors of the district in which the juvenile resides or intends to reside. This notice must be sent at the earliest possible date but not later than ten calendar days after entry of the disposition.

The sex offender treatment provider shall submit quarterly reports on the respondent's progress in treatment to the court and the parties. The reports shall reference the treatment plan and include at a minimum the following: Dates of attendance, respondent's compliance with requirements, treatment activities, the respondent's relative progress in treatment, and any other material specified by the court at the time of the disposition.

At the time of the disposition, the court may set treatment review hearings as the court considers appropriate.

Except as provided in this subsection (5), after July 1, 1991, examinations and treatment ordered pursuant to this subsection shall only be conducted by sex offender treatment providers certified by the department of health pursuant to chapter 18.155 RCW. A sex offender therapist who examines or treats a juvenile sex offender pursuant to this subsection does not have to be certified by the department of health pursuant to chapter 18.155 RCW if the court finds that: (A) The offender has already moved to another state or plans to move to another state for reasons other than circumventing the certification requirements; (B) no certified providers are available for treatment within a reasonable geographical distance of the offender's home; and (C) the evaluation and treatment plan comply with this subsection (5) and the rules adopted by the department of health.

If the offender violates any condition of the disposition or the court finds that the respondent is failing to make satisfactory progress in treatment, the court may revoke the suspension and order execution of the disposition or the court may impose a penalty of up to thirty days' confinement for violating conditions of the disposition. The court may order both execution of the disposition and up to thirty days' confinement for the violation of the conditions of the disposition. The court shall give credit for any confinement time previously served if that confinement was for the offense for which the suspension is being revoked.

For purposes of this section, "victim" means any person who has sustained emotional, psychological, physical, or financial injury to person or property as a direct result of the crime charged. "Victim" may also include a known parent or guardian of a victim who is a minor child unless the parent or guardian is the perpetrator of the offense.

(6) RCW 13.40.193 shall govern the disposition of any juvenile adjudicated of possessing a firearm in violation of RCW 9.41.040(1)(((e))) (b)(iii) or any crime in which a special finding is entered that the juvenile was armed with a firearm.

(7) Whenever a juvenile offender is entitled to credit for time spent in detention prior to a dispositional order, the dispositional order shall specifically state the number of days of credit for time served.

(8) Except as provided for in subsection (4)(b) or (5) of this section or RCW 13.40.125, the court shall not suspend or defer the imposition or the execution of the disposition.

(9) In no case shall the term of confinement imposed by the court at disposition exceed that to which an adult could be subjected for the same offense.

Sec. 2. RCW 13.40.215 and 1995 c 324 s 1 are each amended to read as follows:

(1)(a) Except as provided in subsection (2) of this section, at the earliest possible date, and in no event later than thirty days before discharge, parole, or any other authorized leave or release, or before transfer to a community residential facility, the secretary shall send written notice of the discharge, parole, authorized leave or release, or transfer of a juvenile found to have committed a violent offense, a sex offense, or stalking, to the following:

(i) The chief of police of the city, if any, in which the juvenile will reside;

(ii) The sheriff of the county in which the juvenile will reside; and

(iii) The approved private schools and the common school district board of directors of the district in which the juvenile intends to reside or the approved private school or public school district in which the juvenile last attended school, whichever is appropriate, except when it has been determined by the department that the juvenile is twenty-one years old; is not required to return to school under chapter 28A.225 RCW; or will be in the community for less than seven consecutive days on approved leave and will not be attending school during that time.

(b) After the effective date of this act, the department shall send a written notice to approved private and public schools under the same conditions identified in subsection (1)(a)(iii) of this section when a juvenile adjudicated of any offense is transferred to a community residential facility.

(c) The same notice as required by (a) of this subsection shall be sent to the following, if such notice has been requested in writing about a specific juvenile:

(i) The victim of the offense for which the juvenile was found to have committed or the victim's next of kin if the crime was a homicide;

(ii) Any witnesses who testified against the juvenile in any court proceedings involving the offense; and

(iii) Any person specified in writing by the prosecuting attorney.

Information regarding victims, next of kin, or witnesses requesting the notice, information regarding any other person specified in writing by the prosecuting attorney to receive the notice, and the notice are confidential and shall not be available to the juvenile. The notice to the chief of police or the sheriff shall include the identity of the juvenile, the residence where the juvenile will reside, the identity of the person, if any, responsible for supervising the juvenile, and the time period of any authorized leave.

(((c))) (d) The thirty-day notice requirements contained in this subsection shall not apply to emergency medical furloughs.

(((d))) (e) The existence of the notice requirements in this subsection will not require any extension of the release date in the event the release plan changes after notification.

(2)(a) If a juvenile found to have committed a violent offense, a sex offense, or stalking escapes from a facility of the department, the secretary shall immediately notify, by the most reasonable and expedient means available, the chief of police of the city and the sheriff of the county in which the juvenile resided immediately before the juvenile's arrest. If previously requested, the secretary shall also notify the witnesses and the victim of the offense which the juvenile was found to have committed or the victim's next of kin if the crime was a homicide. If the juvenile is recaptured, the secretary shall send notice to the persons designated in this subsection as soon as possible but in no event later than two working days after the department learns of such recapture.

(b) The secretary may authorize a leave, for a juvenile found to have committed a violent offense, a sex offense, or stalking, which shall not exceed forty-eight hours plus travel time, to meet an emergency situation such as a death or critical illness of a member of the juvenile's family. The secretary may authorize a leave, which shall not exceed the time medically necessary, to obtain medical care not available in a juvenile facility maintained by the department. Prior to the commencement of an emergency or medical leave, the secretary shall give notice of the leave to the appropriate law enforcement agency in the jurisdiction in which the juvenile will be during the leave period. The notice shall include the identity of the juvenile, the time period of the leave, the residence of the juvenile during the leave, and the identity of the person responsible for supervising the juvenile during the leave. If previously requested, the department shall also notify the witnesses and victim of the offense which the juvenile was found to have committed or the victim's next of kin if the offense was a homicide.

In case of an emergency or medical leave the secretary may waive all or any portion of the requirements for leaves pursuant to RCW 13.40.205 (2)(a), (3), (4), and (5).

(3) If the victim, the victim's next of kin, or any witness is under the age of sixteen, the notice required by this section shall be sent to the parents or legal guardian of the child.

(4) The secretary shall send the notices required by this chapter to the last address provided to the department by the requesting party. The requesting party shall furnish the department with a current address.

(5) Upon discharge, parole, or other authorized leave or release, a convicted juvenile sex offender shall not attend a public or approved private elementary, middle, or high school that is attended by a victim or a sibling of a victim of the sex offender. The parents or legal guardians of the convicted juvenile sex offender shall be responsible for transportation or other costs associated with or required by the sex offender's change in school that otherwise would be paid by a school district. Upon discharge, parole, or other authorized leave or release of a convicted juvenile sex offender, the secretary shall send written notice of the discharge, parole, or other authorized leave or release and the requirements of this subsection to the common school district board of directors of the district in which the sex offender intends to reside or the district in which the sex offender last attended school, whichever is appropriate. The secretary shall send a similar notice to any approved private school the juvenile will attend, if known, or if unknown, to the approved private schools within the district the juvenile resides or intends to reside.

(6) For purposes of this section the following terms have the following meanings:

(a) "Violent offense" means a violent offense under RCW 9.94A.030;

(b) "Sex offense" means a sex offense under RCW 9.94A.030;

(d) "Next of kin" means a person's spouse, parents, siblings, and children.

Sec. 3. RCW 28A.225.225 and 1995 c 52 s 3 are each amended to read as follows:

(1) All districts accepting applications from nonresident students or from students receiving home-based instruction for admission to the district's schools shall consider equally all applications received. Each school district shall adopt a policy establishing rational, fair, and equitable standards for acceptance and rejection of applications by June 30, 1990. The policy may include rejection of a nonresident student((s)) if:

(a) Acceptance of ((these)) a nonresident student((s)) would result in the district experiencing a financial hardship;

(b) The student's disciplinary records indicate a history of violent or disruptive behavior or gang membership; or

(c) The student has been expelled or suspended from a public school for more than ten consecutive days. Any policy allowing for readmission of expelled or suspended students under this subsection (1)(c) must apply uniformly to both resident and nonresident applicants.

For purposes of subsection (1)(b) of this section, "gang" means a group which: (i) Consists of three or more persons; (ii) has identifiable leadership; and (iii) on an ongoing basis, regularly conspires and acts in concert mainly for criminal purposes.

(2) The district shall provide to applicants written notification of the approval or denial of the application in a timely manner. If the application is rejected, the notification shall include the reason or reasons for denial and the right to appeal under RCW 28A.225.230(3).

Sec. 4. RCW 28A.600.010 and 1990 c 33 s 496 are each amended to read as follows:

Every board of directors, unless otherwise specifically provided by law, shall:

(1) Enforce the rules ((and regulations)) prescribed by the superintendent of public instruction and the state board of education for the government of schools, pupils, and certificated employees.

(2) Adopt and make available to each pupil, teacher and parent in the district reasonable written rules ((and regulations)) regarding pupil conduct, discipline, and rights, including but not limited to short-term suspensions as referred to in RCW 28A.305.160 and ((long-term)) suspensions in excess of ten consecutive days. Such rules ((and regulations)) shall not be inconsistent with any of the following: Federal statutes and regulations, state statutes, common law ((or)), the rules ((and regulations)) of the superintendent of public instruction ((or)), and the state board of education ((and)). The board's rules shall include such substantive and procedural due process guarantees as prescribed by the state board of education under RCW 28A.305.160. Commencing with the 1976-77 school year, when such rules ((and regulations)) are made available to each pupil, teacher, and parent, they shall be accompanied by a detailed description of rights, responsibilities, and authority of teachers and principals with respect to the discipline of pupils as prescribed by state statutory law, superintendent of public instruction, and state board of education rules ((and regulations)) and rules and regulations of the school district.

For the purposes of this subsection, computation of days included in "short-term" and "long-term" suspensions shall be determined on the basis of consecutive school days.

(3) Suspend, expel, or discipline pupils in accordance with RCW 28A.305.160.

Sec. 5. RCW 28A.600.420 and 1995 c 335 s 304 are each amended to read as follows:

(1) Any elementary or secondary school student who is determined to have carried a firearm onto, or to have possessed a firearm on, public elementary or secondary school premises, public school-provided transportation, or areas of facilities while being used exclusively by public schools, shall be expelled from school for not less than one year under RCW 28A.600.010. The superintendent of the school district, educational service district, state school for the deaf, or state school for the blind may modify the expulsion of a student on a case-by-case basis.

(2) For purposes of this section, "firearm" means a firearm as defined in 18 U.S.C. Sec. 921, and a "firearm" as defined in RCW 9.41.010.

(3) This section shall be construed in a manner consistent with the individuals with disabilities education act, 20 U.S.C. Sec. 1401 et seq.

(4) Nothing in this section prevents a public school district, educational service district, the state school for the deaf, or the state school for the blind if it has expelled a student from such student's regular school setting from providing educational services to the student in an alternative setting.

(5) This section does not apply to:

(a) Any student while engaged in military education authorized by school authorities in which rifles are used but not other firearms; or

(b) Any student while involved in a convention, showing, demonstration, lecture, or firearms safety course authorized by school authorities in which the rifles of collectors or instructors are handled or displayed but not other firearms; or

(6) A school district may suspend or expel a student for up to one year subject to subsections (1), (3), (4), and (5) of this section, if the student acts with malice as defined under RCW 9A.04.110 and displays an instrument that appeared to be a firearm, on public elementary or secondary school premises, public school-provided transportation, or areas of facilities while being used exclusively by public schools.

NEW SECTION. Sec. 6. A new section is added to chapter 28A.150 RCW to read as follows:

(1) The board of directors of school districts may contract with alternative educational service providers for eligible students. Alternative educational service providers that the school district may contract with include, but are not limited to:

(a) Other schools;

(b) Alternative education programs not operated by the school district;

(d) Skills centers;

(e) Dropout prevention programs; or

(f) Other public or private organizations, excluding sectarian or religious organizations.

(2) Eligible students include students who are likely to be expelled or who are enrolled in the school district but have been suspended, are academically at risk, or who have been subject to repeated disciplinary actions due to behavioral problems.

(3) If a school district board of directors chooses to initiate specialized programs for students at risk of expulsion or who are failing academically by contracting out with alternative educational service providers identified in subsection (1) of this section, the school district board of directors and the organization must specify the specific learning standards that students are expected to achieve. Placement of the student shall be jointly determined by the school district, the student's parent or legal guardian, and the alternative educational service provider.

(4) For the purpose of this section, the superintendent of public instruction shall adopt rules for reporting and documenting enrollment. Students may reenter at the grade level appropriate to the student's ability. Students who are sixteen years of age or older may take the GED test.

(5) The board of directors of school districts may require that students who would otherwise be suspended or expelled attend schools or programs listed in subsection (1) of this section as a condition of continued enrollment in the school district.

Sec. 7. RCW 28A.205.020 and 1993 c 211 s 2 are each amended to read as follows:

Only eligible common school dropouts shall be enrolled in a certified education center for reimbursement by the superintendent of public instruction as provided in RCW 28A.205.040. ((No)) A person ((shall be considered)) is not an eligible common school dropout ((who)) if: (1) The person has completed high school, (2) ((who)) the person has not reached his or her ((thirteenth)) twelfth birthday or has passed his or her twentieth birthday, ((or)) (3) the person shows proficiency beyond the high school level in a test approved by the superintendent of public instruction to be given as part of the initial diagnostic procedure, or (4) ((until)) less than one month has passed after ((he or she)) the person has dropped out of any common school and the education center has not received written verification from a school official of the common school last attended in this state that ((such)) the person is no longer in attendance at ((such)) the school((, unless such center has been requested to admit such person by written communication of)). A person is an eligible common school dropout even if one month has not passed since the person dropped out if the board of directors or its designee, of that common school, ((or unless such)) requests the center to admit the person because the person has dropped out or because the person is unable to attend a particular common school because of disciplinary reasons, including suspension and/or expulsion ((therefrom)). The fact that any person may be subject to RCW 28A.225.010 through 28A.225.150, 28A.200.010, and 28A.200.020 shall not affect his or her qualifications as an eligible common school dropout under this chapter.

Sec. 8. RCW 28A.205.080 and 1993 c 211 s 7 are each amended to read as follows:

The legislature recognizes that education centers provide a necessary and effective service for students who have dropped out of common school programs. Education centers have demonstrated success in preparing such youth for productive roles in society and are an integral part of the state's program to address the needs of students who have dropped out of school. The superintendent of public instruction shall distribute funds, consistent with legislative appropriations, allocated specifically for education centers in accord with chapter 28A.205 RCW. The legislature encourages school districts to explore cooperation with education centers pursuant to section 6 of this act.

NEW SECTION. Sec. 9. 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."

On page 1, line 1 of the title, after "schools;" strike the remainder of the title and insert "amending RCW 13.40.160, 13.40.215, 28A.225.225, 28A.600.010, 28A.600.420, 28A.205.020, and 28A.205.080; adding a new section to chapter 28A.150 RCW; and prescribing penalties.", and that the bill do pass as recommended by the Conference Committee.

Signed by Senators Zarelli, McAuliffe, Johnson; Representatives Sterk, Quall, Radcliff.

MOTION

On motion of Senator Johnson, the Senate adopted the Report of the Conference Committee on Engrossed House Bill No. 1581.

MOTION

On motion of Senator Hale, Senators McDonald, Prince, Sellar and West were excused.

The President Pro Tempore declared the question before the Senate to be the roll call on the final passage of Engrossed House Bill No. 1581, as recommended by the Conference Committee.

ROLL CALL

The Secretary called the roll on the final passage of Engrossed House Bill No. 1581, as recommended by the Conference Committee, and the bill passed the Senate by the following vote: Yeas, 41; Nays, 0; Absent, 0; Excused, 8.

Excused: Senators Brown, McCaslin, McDonald, Prince, Rasmussen, Sellar, Snyder and West - 8. ENGROSSED HOUSE BILL NO. 1581, as recommended by the Conference Committee, having received the constitutional majority, was declared passed. There being no objection, the title of the bill will stand as the title of the act.

MESSAGE FROM THE HOUSE

April 24, 1997

MR. PRESIDENT:

The House insists on its position regarding the Senate amendment(s) to HOUSE BILL NO. 1708 and asks the Senate to recede therefrom, and the same are herewith transmitted.

TIMOTHY A. MARTIN, Chief Clerk

MOTION

On motion of Senator Schow, the Senate receded from its amendment(s) to House Bill No. 1708.

The President Pro Tempore declared the question before the Senate to be the roll call on the final passage of House Bill No. 1708, without the Senate amendment(s).

ROLL CALL

The Secretary called the roll on the final passage of House Bill No. 1708, without the Senate amendment(s), and the bill passed the Senate by the following vote: Yeas, 41; Nays, 0; Absent, 0; Excused, 8.

Voting yea: Senators Anderson, Bauer, Benton, Deccio, Fairley, Finkbeiner, Franklin, Fraser, Goings, Hale, Hargrove, Haugen, Heavey, Hochstatter, Horn, Jacobsen, Johnson, Kline, Kohl, Long, Loveland, McAuliffe, Morton, Newhouse, Oke, Patterson, Prentice, Roach, Rossi, Schow, Sheldon, Spanel, Stevens, Strannigan, Swanson, Swecker, Thibaudeau, Winsley, Wojahn, Wood and Zarelli - 41. Excused: Senators Brown, McCaslin, McDonald, Prince, Rasmussen, Sellar, Snyder and West - 8. HOUSE BILL NO. 1708, without the Senate amendment(s), having received the constitutional majority, was declared passed. There being no objection, the title of the bill will stand as the title of the act.

MOTION

At 9:38 a.m., on motion of Senator Johnson, the Senate was declared to be at ease.

The Senate was called to order at 10:23 a.m by President Pro Tempore Newhouse.

REPORT OF CONFERENCE COMMITTEE

E2SHB 1850 April 24, 1997

Includes "New Items": YES

Adopting the long-term care reorganization and standards of care reform act

MR. PRESIDENT:

MR. SPEAKER:

We of your Conference Committee, to whom was referred ENGROSSED SECOND SUBSTITUTE HOUSE BILL NO. 1850, Long-term care services, have had the same under consideration and we recommend that:

All previous amendments not be adopted and the following striking amendment by the Conference Committee be adopted:Strike everything after the enacting clause and insert the following:

"PART I

NEW SECTION. Sec. 101. This act shall be known and may be cited as the Clara act.

NEW SECTION. Sec. 102. FINDINGS AND INTENT. The legislature finds and declares that the state's current fragmented categorical system for administering services to persons with disabilities and the elderly is not client and family-centered and has created significant organizational barriers to providing high quality, safe, and effective care and support. The present fragmented system results in uncoordinated enforcement of regulations designed to protect the health and safety of disabled persons, lacks accountability due to the absence of management information systems' client tracking data, and perpetuates difficulty in matching client needs and services to multiple categorical funding sources.

The legislature further finds that Washington's chronically functionally disabled population of all ages is growing at a rapid pace due to a population of the very old and increased incidence of disability due in large measure to technological improvements in acute care causing people to live longer. Further, to meet the significant and growing long-term care needs into the near future, rapid, fundamental changes must take place in the way we finance, organize, and provide long-term care services to the chronically functionally disabled.

The legislature further finds that the public demands that long-term care services be safe, client and family-centered, and designed to encourage individual dignity, autonomy, and development of the fullest human potential at home or in other residential settings, whenever practicable.

NEW SECTION. Sec. 103. A new section is added to chapter 74.39A RCW to read as follows:

DEFINITIONS. Unless the context clearly requires otherwise, the definitions in this section apply throughout this chapter.

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

(2) "Adult residential care" means services provided by a boarding home that is licensed under chapter 18.20 RCW and that has a contract with the department under RCW 74.39A.020.

(3) "Assisted living services" means services provided by a boarding home that has a contract with the department under RCW 74.39A.010 and the resident is housed in a private apartment-like unit.

(4) "Boarding home" means a facility licensed under chapter 18.20 RCW.

(5) "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.

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

(7) "Enhanced adult residential care" means services provided by a boarding home that is licensed under chapter 18.20 RCW and that has a contract with the department under RCW 74.39A.010.

(8) "Functionally disabled person" is synonymous with chronic functionally disabled and means a person who because of a recognized chronic physical or mental condition or disease, including chemical dependency, is impaired to the extent of being 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 may also be used to assess a person's functional abilities as they are related to the mental capacity to perform activities in the home and the community such as cooking, shopping, house cleaning, doing laundry, working, and managing personal finances.

(9) "Home and community services" means 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 by the department.

(10) "Long-term care" is synonymous with chronic care and means care and supports delivered indefinitely, intermittently, or over a sustained time to persons of any age disabled by chronic mental or physical illness, disease, chemical dependency, or a medical condition that is permanent, not reversible or 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 by any individuals, groups, residential care settings, or professions unless otherwise expressed by law.

(11) "Nursing home" means a facility licensed under chapter 18.51 RCW.

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

(13) "Tribally licensed boarding home" means a boarding home licensed by a federally recognized Indian tribe which home provides services similar to boarding homes licensed under chapter 18.20 RCW.

NEW SECTION. Sec. 104. JOINT LEGISLATIVE COMMITTEE ON LONG-TERM CARE OVERSIGHT. (1) There is created a joint legislative committee on long-term care oversight. The committee shall consist of: (a) Four members of the senate appointed by the president of the senate, two of whom shall be members of the majority party and two of whom shall be members of the minority party; and (b) four members of the house of representatives, two of whom shall be members of the majority party and two of whom shall be members of the minority party.

(2) The committee shall elect a chair and vice-chair. The chair shall be a member of the senate in even-numbered years and a member of the house of representatives in odd-numbered years. The vice-chair shall be a member of the senate in odd-numbered years and a member of the house of representatives in even-numbered years.

(3) The committee shall:

(a) Review the need for reorganization and reform of long-term care administration and service delivery;

(b) Review all quality standards developed, revised, and enforced by the department;

(c) In cooperation with the department of social and health services, develop suggestions to simplify, reduce, or eliminate unnecessary rules, procedures, and burdensome paperwork that prove to be barriers to providing effective coordination or high quality direct services;

(d) Suggest methods of cost-efficiencies that can be used to reallocate funds to unmet needs in direct services;

(e) List all nonmeans tested programs and activities funded by the federal older Americans act and state funded senior citizens act or other such state funded programs and recommend how to integrate such services into existing long-term care programs for the functionally disabled;

(f) Suggest methods to establish a single point of entry for service eligibility and delivery for functionally disabled persons;

(g) Evaluate the need for long-term care training and review all long-term care training and education programs conducted by the department and suggest modifications to improve the training system;

(h) Describe current facilities and services that provide long-term care to all types of chronically disabled individuals in the state including Revised Code of Washington requirements, Washington Administrative Code rules, allowable occupancy, typical clientele, discharge practices, agency oversight, rates, eligibility requirements, entry process, social and health services and other services provided, staffing standards, and physical plant standards;

(i) Determine the extent to which the current long-term care system meets the health and safety needs of the state's long-term care population and is appropriate for the specific and identified needs of the residents in all settings;

(j) Assess the adequacy of the discharge and referral process in protecting the health and safety of long-term care clients;

(k) Determine the extent to which training and supervision of direct care staff are adequate to ensure safety and appropriate care;

(l) Identify opportunities for consolidation between categories of care; and

(m) Determine if payment rates are adequate to cover the varying costs of clients with different levels of need.

PART II

QUALITY STANDARDS AND COMPLAINT ENFORCEMENT

NEW SECTION. Sec. 201. A new section is added to chapter 70.124 RCW to read as follows:

(1) An employee who is a whistleblower and who as a result of being a whistleblower has been subjected to workplace reprisal or retaliatory action, has the remedies provided under chapter 49.60 RCW. RCW 4.24.500 through 4.24.520, providing certain protection to persons who communicate to government agencies, apply to complaints made under this section. The identity of a whistleblower who complains, in good faith, to the department about suspected abuse, neglect, financial exploitation, or abandonment by any person in a nursing home, state hospital, or adult family home may remain confidential if requested. The identity of the whistleblower shall subsequently remain confidential unless the department determines that the complaint was not made in good faith.

(2)(a) An attempt to discharge a resident from a nursing home, state hospital, adult family home, or any type of discriminatory treatment of a resident by whom, or upon whose behalf, a complaint substantiated by the department has been submitted to the department or any proceeding instituted under or related to this chapter

within one year of the filing of the complaint or the institution of the action, raises a rebuttable presumption that the action was in retaliation for the filing of the complaint.

(b) The presumption is rebutted by credible evidence establishing the alleged retaliatory action was initiated prior to the complaint.

(c) The presumption is rebutted by a functional assessment conducted by the department that shows that the resident's needs cannot be met by the reasonable accommodations of the facility due to the increased needs of the resident.

(3) For the purposes of this section:

(a) "Whistleblower" means a resident or employee of a nursing home, state hospital, or adult family home, or any person licensed under Title 18 RCW, who in good faith reports alleged abuse, neglect, exploitation, or abandonment to the department or to a law enforcement agency;

(c) "Reasonable accommodation" by a facility to the needs of a prospective or current resident has the meaning given to this term under the federal Americans with disabilities act of 1990, 42 U.S.C. Sec. 12101 et seq. and other applicable federal or state antidiscrimination laws and regulations.

(4) This section does not prohibit a nursing home, state hospital, or adult family home from exercising its authority to terminate, suspend, or discipline an employee who engages in workplace reprisal or retaliatory action against a whistleblower. The protections provided to whistleblowers under this chapter shall not prevent a nursing home, state hospital, or adult family home from: (a) Terminating, suspending, or disciplining a whistleblower for other lawful purposes; or (b) for facilities with six or fewer residents, reducing the hours of employment or terminating employment as a result of the demonstrated inability to meet payroll requirements. The department shall determine if the facility cannot meet payroll in cases where a whistleblower has been terminated or had hours of employment reduced due to the inability of a facility to meet payroll.

(5) The department shall adopt rules to implement procedures for filing, investigation, and resolution of whistleblower complaints that are integrated with complaint procedures under this chapter.

(6) No frail elder or vulnerable person who relies upon and is being provided spiritual treatment in lieu of medical treatment in accordance with the tenets and practices of a well-recognized religious denomination shall for that reason alone be considered abandoned, abused, or neglected, nor shall anything in this chapter be construed to authorize, permit, or require medical treatment contrary to the stated or clearly implied objection of such a person.

(7) The department shall adopt rules designed to discourage whistleblower complaints made in bad faith or for retaliatory purposes.

NEW SECTION. Sec. 202. A new section is added to chapter 74.34 RCW to read as follows:

(1) An employee or contractor who is a whistleblower and who as a result of being a whistleblower has been subjected to workplace reprisal or retaliatory action, has the remedies provided under chapter 49.60 RCW. RCW 4.24.500 through 4.24.520, providing certain protection to persons who communicate to government agencies, apply to complaints made under this section. The identity of a whistleblower who complains, in good faith, to the department about suspected abuse, neglect, exploitation, or abandonment by any person in a boarding home licensed or required to be licensed pursuant to chapter 18.20 RCW or a veterans' home pursuant to chapter 72.36 RCW or care provided in a boarding home or a veterans' home by any person associated with a hospice, home care, or home health agency licensed under chapter 70.127 RCW or other in-home provider may remain confidential if requested. The identity of the whistleblower shall subsequently remain confidential unless the department determines that the complaint was not made in good faith. (2)(a) An attempt to expel a resident from a boarding home or veterans' home, or any type of discriminatory treatment of a resident who is a consumer of hospice, home health, home care services, or other in-home services by whom, or upon whose behalf, a complaint substantiated by the department or the department of health has been submitted to the department or any proceeding instituted under or related to this chapter within one year of the filing of the complaint or the institution of the action, raises a rebuttable presumption that the action was in retaliation for the filing of the complaint.

(b) The presumption is rebutted by credible evidence establishing the alleged retaliatory action was initiated prior to the complaint.

(c) The presumption is rebutted by a functional assessment conducted by the department that shows that the resident or consumer's needs cannot be met by the reasonable accommodations of the facility due to the increased needs of the resident.

(3) For the purposes of this section:

(a) "Whistleblower" means a resident or a person with a mandatory duty to report under this chapter, or any person licensed under Title 18 RCW, who in good faith reports alleged abuse, neglect, exploitation, or abandonment to the department, or the department of health, or to a law enforcement agency;

(b) "Workplace reprisal or retaliatory action" means, but is not limited to: Denial of adequate staff to perform duties; frequent staff changes; frequent and undesirable office changes; refusal to assign meaningful work; unwarranted and unsubstantiated report of misconduct under Title 18 RCW; letters of reprimand or unsatisfactory performance evaluations; demotion; denial of employment; or a supervisor or superior encouraging coworkers to behave in a hostile manner toward the whistleblower. The protections provided to whistleblowers under this chapter shall not prevent a nursing home, state hospital, boarding home, or adult family home from: (i) Terminating, suspending, or disciplining a whistleblower for other lawful purposes; or (ii) for facilities licensed under chapter 70.128 RCW, reducing the hours of employment or terminating employment as a result of the demonstrated inability to meet payroll requirements. The department shall determine if the facility cannot meet payroll in cases in which a whistleblower has been terminated or had hours of employment reduced because of the inability of a facility to meet payroll; and

(4) This section does not prohibit a boarding home or veterans' home from exercising its authority to terminate, suspend, or discipline any employee who engages in workplace reprisal or retaliatory action against a whistleblower.

(5) The department shall adopt rules to implement procedures for filing, investigation, and resolution of whistleblower complaints that are integrated with complaint procedures under this chapter.

(7) The department, and the department of health for facilities, agencies, or individuals it regulates, shall adopt rules designed to discourage whistleblower complaints made in bad faith or for retaliatory purposes.

Sec. 203. RCW 70.129.010 and 1994 c 214 s 2 are each amended to read as follows:

Unless the context clearly requires otherwise, the definitions in this section apply throughout this chapter.

(1) "Department" means the department of state government responsible for licensing the provider in question.

(2) "Facility" means a long-term care facility.

(3) "Long-term care facility" means a facility that is licensed or required to be licensed under chapter 18.20, 72.36, or 70.128 RCW.

(4) "Resident" means the individual receiving services in a long-term care facility, that resident's attorney in fact, guardian, or other legal representative acting within the scope of their authority.

(5) "Physical restraint" means a manual method, obstacle, or physical or mechanical device, material, or equipment attached or adjacent to the resident's body that restricts freedom of movement or access to his or her body(([,])), is used for discipline or convenience(([,])), and not required to treat the resident's medical symptoms.

(6) "Chemical restraint" means a psychopharmacologic drug that is used for discipline or convenience and not required to treat the resident's medical symptoms.

(7) "Representative" means a person appointed under RCW 7.70.065.

(8) "Reasonable accommodation" by a facility to the needs of a prospective or current resident has the meaning given to this term under the federal Americans with disabilities act of 1990, 42 U.S.C. Sec. 12101 et seq. and other applicable federal or state antidiscrimination laws and regulations.

Sec. 204. RCW 70.129.030 and 1994 c 214 s 4 are each amended to read as follows:

(1) The facility must inform the resident both orally and in writing in a language that the resident understands of his or her rights and all rules and regulations governing resident conduct and responsibilities during the stay in the facility. The notification must be made prior to or upon admission. Receipt of the information must be acknowledged in writing.

(2) The resident or his or her legal representative has the right:

(a) Upon an oral or written request, to access all records pertaining to himself or herself including clinical records within twenty-four hours; and

(b) After receipt of his or her records for inspection, to purchase at a cost not to exceed the community standard photocopies of the records or portions of them upon request and two working days' advance notice to the facility.

(3) The facility shall only admit or retain individuals whose needs it can safely and appropriately serve in the facility with appropriate available staff or through the provision of reasonable accommodations as required by state or federal law. Except in cases of emergency, facilities shall not admit an individual before obtaining a comprehensive assessment of the resident's needs and preferences, unless unavailable despite the best efforts of the facility and other interested parties. The assessment shall contain, within existing department funds, the following information: Recent medical history; necessary and prohibited medications; a medical professional's diagnosis; significant known behaviors or symptoms that may cause concern or require special care; mental illness except where protected by confidentiality laws; level of personal care needs; activities and service preferences; and preferences regarding issues important to the potential resident, such as food and daily routine. The facility must inform each resident in writing in a language the resident or his or her representative understands before((, or at the time of)) admission, and at least once every twenty-four months thereafter, of: (a) Services, items, and activities customarily available in the facility or arranged for by the facility; (b) charges for those services, items, and activities including charges for services, items, and activities not covered by the facility's per diem rate or applicable public benefit programs; and (c) the rules of facility operations required under RCW 70.129.140(2). Each resident and his or her representative must be informed in writing in advance of changes in the availability or the charges for services, items, or activities, or of changes in the facility's rules. Except in unusual circumstances, thirty days' advance notice must be given prior to the change. However, for facilities licensed for six or fewer residents, if there has been a substantial and continuing change in the resident's condition necessitating substantially greater or lesser services, items, or activities, then the charges for those services, items, or activities may be changed upon fourteen days advance written notice.

(4) The facility must furnish a written description of residents rights that includes:

(a) A description of the manner of protecting personal funds, under RCW 70.129.040;

(b) A posting of names, addresses, and telephone numbers of the state survey and certification agency, the state licensure office, the state ombudsmen program, and the protection and advocacy systems; and

(c) A statement that the resident may file a complaint with the appropriate state licensing agency concerning resident abuse, neglect, and misappropriation of resident property in the facility.

(5) Notification of changes.

(a) A facility must immediately consult with the resident's physician, and if known, make reasonable efforts to notify the resident's legal representative or an interested family member when there is:

(i) An accident involving the resident which requires or has the potential for requiring physician intervention;

(ii) A significant change in the resident's physical, mental, or psychosocial status (i.e., a deterioration in health, mental, or psychosocial status in either life-threatening conditions or clinical complications).

(b) The facility must promptly notify the resident or the resident's representative shall make reasonable efforts to notify an interested family member, if known, when there is:

(i) A change in room or roommate assignment; or

(ii) A decision to transfer or discharge the resident from the facility.

(c) The facility must record and update the address and phone number of the resident's representative or interested family member, upon receipt of notice from them.

(6) This section applies to long-term care facilities covered under this chapter.

Sec. 205. RCW 70.129.110 and 1994 c 214 s 12 are each amended to read as follows:

(1) The facility must permit each resident to remain in the facility, and not transfer or discharge the resident from the facility unless:

(a) The transfer or discharge is necessary for the resident's welfare and the resident's needs cannot be met in the facility;

(b) The safety of individuals in the facility is endangered;

(d) The resident has failed to make the required payment for his or her stay; or

(e) The facility ceases to operate.

(2) All long-term care facilities shall fully disclose to potential residents or their legal representative the service capabilities of the facility prior to admission to the facility. If the care needs of the applicant who is medicaid eligible are in excess of the facility's service capabilities, the department shall identify other care settings or residential care options consistent with federal law.

(3) Before a long-term care facility transfers or discharges a resident, the facility must:

(a) First attempt through reasonable accommodations to avoid the transfer or discharge, unless agreed to by the resident;

(b) Notify the resident and representative and make a reasonable effort to notify, if known, an interested family member of the transfer or discharge and the reasons for the move in writing and in a language and manner they understand;

(((b))) (c) Record the reasons in the resident's record; and

(((c))) (d) Include in the notice the items described in subsection (((4))) (5) of this section.

(((3))) (4)(a) Except when specified in this subsection, the notice of transfer ((of [or])) or discharge required under subsection (((2))) (3) of this section must be made by the facility at least thirty days before the resident is transferred or discharged.

(b) Notice may be made as soon as practicable before transfer or discharge when:

(i) The safety of individuals in the facility would be endangered;

(ii) The health of individuals in the facility would be endangered;

(iii) An immediate transfer or discharge is required by the resident's urgent medical needs; or

(iv) A resident has not resided in the facility for thirty days.

(((4))) (5) The written notice specified in subsection (((2))) (3) of this section must include the following:

(a) The reason for transfer or discharge;

(b) The effective date of transfer or discharge;

(d) The name, address, and telephone number of the state long-term care ombudsman;

(e) For residents with developmental disabilities, the mailing address and telephone number of the agency responsible for the protection and advocacy of developmentally disabled individuals established under part C of the developmental disabilities assistance and bill of rights act; and

(f) For residents who are mentally ill, the mailing address and telephone number of the agency responsible for the protection and advocacy of mentally ill individuals established under the protection and advocacy for mentally ill individuals act.

(((5))) (6) A facility must provide sufficient preparation and orientation to residents to ensure safe and orderly transfer or discharge from the facility.

(((6))) (7) A resident discharged in violation of this section has the right to be readmitted immediately upon the first availability of a gender-appropriate bed in the facility.

Sec. 206. RCW 70.129.150 and 1994 c 214 s 16 are each amended to read as follows:

(1) Prior to admission, all long-term care facilities or nursing facilities licensed under chapter 18.51 RCW that require payment of an admissions fee, deposit, or a minimum stay fee, by or on behalf of a person seeking ((admissions [admission])) admission to the long-term care facility or nursing facility, shall provide the resident, or his or her representative, full disclosure in writing ((of the long-term care facility or nursing facility's schedule of charges for items and services provided by the facility and)) in a language the resident or his or her representative understands, a statement of the amount of any admissions fees, deposits, prepaid charges, or minimum stay fees. The facility shall also disclose to the person, or his or her representative, the facility's advance notice or transfer requirements, prior to admission. In addition, the long-term care facility or nursing facility shall also fully disclose in writing prior to admission what portion of the deposits, admissions fees, prepaid charges, or minimum stay fees will be refunded to the resident or his or her representative if the resident leaves the long-term care facility or nursing facility. Receipt of the disclosures required under this subsection must be acknowledged in writing. If the facility does not provide these disclosures, the deposits, admissions fees, prepaid charges, or minimum stay fees may not be kept by the facility. If a resident((, during the first thirty days of residence,)) dies or is hospitalized or is transferred to another facility for more appropriate care and does not return to the original facility, the facility shall refund any deposit or charges already paid less the facility's per diem rate for the days the resident actually resided or reserved or retained a bed in the facility notwithstanding any minimum stay policy or discharge notice requirements, except that the facility may retain an additional amount to cover its reasonable, actual expenses incurred as a result of a private-pay resident's move, not to exceed five days' per diem charges, unless the resident has given advance notice in compliance with the admission agreement. All long-term care facilities or nursing facilities covered under this section are required to refund any and all refunds due the resident or ((their)) his or her representative within thirty days from the resident's date of discharge from the facility. Nothing in this section applies to provisions in contracts negotiated between a nursing facility or long-term care facility and a certified health plan, health or disability insurer, health maintenance organization, managed care organization, or similar entities.

(2) Where a long-term care facility or nursing facility requires the execution of an admission contract by or on behalf of an individual seeking admission to the facility, the terms of the contract shall be consistent with the requirements of this section, and the terms of an admission contract by a long-term care facility shall be consistent with the requirements of this chapter.

Sec. 207. RCW 74.39A.030 and 1995 1st sp.s. c 18 s 2 are each amended to read as follows:

(1) To the extent of available funding, the department shall expand cost-effective options for home and community services for consumers for whom the state participates in the cost of their care.

(2) In expanding home and community services, the department shall: (a) Take full advantage of federal funding available under Title XVIII and Title XIX of the federal social security act, including home health, adult day care, waiver options, and state plan services; and (b) be authorized to use funds available under its community options program entry system waiver granted under section 1915(c) of the federal social security act to expand the availability of in-home, adult residential care, adult family homes, enhanced adult residential care, and assisted living services. By June 30, 1997, the department shall undertake to reduce the nursing home medicaid census by at least one thousand six hundred by assisting individuals who would otherwise require nursing facility services to obtain services of their choice, including assisted living services, enhanced adult residential care, and other home and community services. The department shall make reasonable efforts to contract for at least one hundred eighty state clients who would otherwise be served in nursing facilities or in assisted living to instead be served in enhanced adult residential care settings by June 30, 1999. If a resident, or his or her legal representative, objects to a discharge decision initiated by the department, the resident shall not be discharged if the resident has been assessed and determined to require nursing facility services. In contracting with nursing homes and boarding homes for enhanced adult residential care placements, neither the department nor the department of health shall ((not)) require, by contract or through other means, structural modifications to existing building construction.

(3)(a) The department shall by rule establish payment rates for home and community services that support the provision of cost-effective care. In contracting with licensed boarding homes for providing additional enhanced adult residential care services for up to one hundred eighty clients pursuant to subsection (2)(b) of this section, the payment rate shall be established at no less than thirty-five and no greater than forty percent of the average state-wide nursing facility medicaid payment rate.

(b) The department may authorize an enhanced adult residential care rate for nursing homes that temporarily or permanently convert their bed use for the purpose of providing enhanced adult residential care under chapter 70.38 RCW, when the department determines that payment of an enhanced rate is cost-effective and necessary to foster expansion of contracted enhanced adult residential care services. As an incentive for nursing homes to permanently convert a portion of its nursing home bed capacity for the purpose of providing enhanced adult residential care, the department may authorize a supplemental add-on to the enhanced adult residential care rate.

(c) The department may authorize a supplemental assisted living services or an enhanced adult residential care services rate for up to four years for facilities that convert from nursing home use and do not retain rights to the converted nursing home beds under chapter 70.38 RCW, if the department determines that payment of a supplemental rate is cost-effective and necessary to foster expansion of contracted assisted living or enhanced adult residential care services.

Sec. 208. RCW 74.39A.040 and 1995 1st sp.s. c 18 s 6 are each amended to read as follows:

The department shall work in partnership with hospitals, who choose to participate, in assisting patients and their families to find long-term care services of their choice according to subsections (1) through (4) of this section. The department shall not delay hospital discharges but shall assist and support the activities of hospital discharge planners. The department also shall coordinate with home health and hospice agencies whenever appropriate. The role of the department is to assist the hospital and to assist patients and their families in making informed choices by providing information regarding home and community options to individuals who are hospitalized and likely to need long-term care.

(1) To the extent of available funds, the department shall assess individuals who:

(a) Are medicaid clients, medicaid applicants, or eligible for both medicare and medicaid; and

(b) Apply or are likely to apply for admission to a nursing facility.

(2) For individuals who are reasonably expected to become medicaid recipients within one hundred eighty days of admission to a nursing facility, the department shall, to the extent of available funds, offer an assessment and information regarding appropriate in-home and community services.

(3) When the department finds, based on assessment, that the individual prefers and could live appropriately and cost-effectively at home or in some other community-based setting, the department shall:

(a) Advise the individual that an in-home or other community service is appropriate;

(b) Develop, with the individual or the individual's representative, a comprehensive community service plan;

(c) Inform the individual regarding the availability of services that could meet the applicant's needs as set forth in the community service plan and explain the cost to the applicant of the available in-home and community services relative to nursing facility care; and

(d) Discuss and evaluate the need for on-going involvement with the individual or the individual's representative.

(4) When the department finds, based on assessment, that the individual prefers and needs nursing facility care, the department shall:

(a) Advise the individual that nursing facility care is appropriate and inform the individual of the available nursing facility vacancies;

(b) If appropriate, advise the individual that the stay in the nursing facility may be short term; and

(5) All hospitals who choose to not participate with the department according to subsections (1) through (4) of this section shall provide their own hospital long-term care discharge services for patients needing long-term care information or services. The hospital shall advise the individual regarding its recommended discharge placement for individuals requiring posthospital care and shall, consistent with the individual's expressed preferences and in accordance with his or her care needs, identify services, including known costs, available in the community and shall develop with the individual and his or her legal representative a comprehensive community service plan, if in-home or other community service is appropriate and preferred.

Sec. 209. RCW 74.39A.050 and 1995 1st sp.s. c 18 s 12 are each amended to read as follows:

The department's system of quality improvement for long-term care services shall ((be guided by)) use the following principles, consistent with applicable federal laws and regulations:

(1) The system shall be ((consumer)) client-centered and promote privacy, independence, dignity, choice, and a home or home-like environment for consumers consistent with chapter . . ., Laws of 1997 (this act).

(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 inspections, the department shall interview an appropriate percentage of residents, family members, resident managers, and advocates in addition to interviewing providers and staff.

(3) Providers should be supported in their efforts to improve quality and address identified problems initially through training, consultation, technical assistance, and case management.

(4) The emphasis should be on problem prevention both in monitoring and in screening potential providers of service.

(5) Monitoring should be outcome based and responsive to consumer complaints and a clear set of health, quality of care, and safety standards that are easily understandable and have been made available to providers.

(6) ((Providers generally should be assisted in addressing identified problems initially through consultation and technical assistance.)) Prompt and specific enforcement remedies shall also be ((available)) implemented without delay, pursuant to RCW 74.39A.080, RCW 70.128.160, chapter 18.51 RCW, or chapter 74.42 RCW, for providers found to have delivered care or failed to deliver care resulting in problems that are serious, recurring, or ((that have been)) uncorrected, or that create a hazard that is causing or likely to cause death or serious harm to one or more residents. These enforcement remedies may also include, when appropriate, reasonable conditions on a contract or license. In the selection of remedies, the safety, health, and well-being of residents shall be of paramount importance.

(7) To the extent funding is available, all long-term care staff directly responsible for the care, supervision, or treatment of vulnerable persons should be screened through background checks in a uniform and timely manner to ensure that they do not have a criminal history that would disqualify them from working with vulnerable persons. Whenever a state conviction record check is required by state law, persons may be employed or engaged as volunteers or independent contractors on a conditional basis according to law and rules adopted by the department.

(8) No provider or staff, or prospective provider or staff, with a stipulated finding of fact, conclusion of law, an agreed order, or finding of fact, conclusion of law, or final order issued by a disciplining authority, a court of law, or entered into a state registry finding him or her guilty of abuse, neglect, exploitation, or abandonment of a minor or a vulnerable adult as defined in chapter 74.34 RCW shall be employed in the care of and have unsupervised access to vulnerable adults.

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

(10) Within existing funds, the department shall design, develop, and implement a long-term care training program that is flexible, relevant, and qualifies towards the requirements for a nursing assistant certificate as established under chapter 18.88A RCW. This subsection does not require completion of the nursing assistant certificate training program by providers or their staff. The long-term care teaching curriculum must consist of a fundamental module, or modules, and a range of other available relevant training modules that provide the caregiver with appropriate options that assist in meeting the resident's care needs. Some of the training modules may include, but are not limited to, specific training on the special care needs of persons with developmental disabilities, dementia, mental illness, and the care needs of the elderly. No less than one training module must be dedicated to workplace violence prevention. The nursing care quality assurance commission shall work together with the department to develop the curriculum modules and accept some or all of the curriculum modules hour for hour towards meeting the requirements for a nursing assistant certificate as defined in chapter 18.88A RCW. The department may review whether facilities can develop their own related long-term care training programs. The department may develop a review process for determining what previous experience and training may be used to waive some or all of the mandatory training.

Sec. 210. RCW 74.39A.060 and 1995 1st sp.s. c 18 s 13 are each amended to read as follows:

(1) The aging and adult services administration of the department shall establish and maintain a toll-free telephone number for receiving complaints regarding a facility that the administration licenses or with which it contracts for long-term care services.

(2) All facilities that are licensed by, or that contract with the aging and adult services administration to provide chronic long-term care services shall post in a place and manner clearly visible to residents and visitors the department's toll-free complaint telephone number and the toll-free number and program description of the long-term care ombudsman as provided by RCW 43.190.050.

(3) The aging and adult services administration shall investigate complaints if the subject of the complaint is within its authority unless the department determines that: (a) The complaint is intended to willfully harass a licensee or employee of the licensee; or (b) there is no reasonable basis for investigation; or (c) corrective action has been taken as determined by the ombudsman or the department.

(4) The aging and adult services administration shall refer complaints to appropriate state agencies, law enforcement agencies, the attorney general, the long-term care ombudsman, or other entities if the department lacks authority to investigate or if its investigation reveals that a follow-up referral to one or more of these entities is appropriate.

(5) The department shall adopt rules that include the following complaint investigation protocols:

(a) Upon receipt of a complaint, the department shall make a preliminary review of the complaint, assess the severity of the complaint, and assign an appropriate response time. Complaints involving imminent danger to the health, safety, or well-being of a resident must be responded to within two days. When appropriate, the department shall make an on-site investigation within a reasonable time after receipt of the complaint or otherwise ensure that complaints are responded to.

(b) The complainant must be: Promptly contacted by the department, unless anonymous or unavailable despite several attempts by the department, and informed of the right to discuss the alleged violations with the inspector and to provide other information the complainant believes will assist the inspector; informed of the department's course of action; and informed of the right to receive a written copy of the investigation report.

(c) In conducting the investigation, the department shall interview the complainant, unless anonymous, and shall use its best efforts to interview the resident or residents allegedly harmed by the violations, and, in addition to facility staff, any available independent sources of relevant information, including if appropriate the family members of the resident.

(d) Substantiated complaints involving harm to a resident, if an applicable law or regulation has been violated, shall be subject to one or more of the actions provided in RCW 74.39A.080 or 70.128.160. Whenever appropriate, the department shall also give consultation and technical assistance to the provider.

(e) In the best practices of total quality management and continuous quality improvement, after a department finding of a violation that is serious, recurring, or uncorrected following a previous citation, the department shall make an on-site revisit of the facility to ensure correction of the violation, except for license or contract suspensions or revocations.

(f) Substantiated complaints of neglect, abuse, exploitation, or abandonment of residents, or suspected criminal violations, shall also be referred by the department to the appropriate law enforcement agencies, the attorney general, and appropriate professional disciplining authority.

(6) The department may ((not)) provide the substance of the complaint to the licensee or contractor before the completion of the investigation by the department unless such disclosure would reveal the identity of a complainant, witness, or resident who chooses to remain anonymous. Neither the substance of the complaint provided to the licensee or contractor nor any copy of the complaint or related report published, released, or made otherwise available shall disclose, or reasonably lead to the disclosure of, the name, title, or identity of any complainant, or other person mentioned in the complaint, except that the name of the provider and the name or names of any officer, employee, or agent of the department conducting the investigation shall be disclosed after the investigation has been closed and the complaint has been substantiated. The department may disclose the identity of the complainant if such disclosure is requested in writing by the complainant. Nothing in this subsection shall be construed to interfere with the obligation of the long-term care ombudsman program or department staff to monitor the department's licensing, contract, and complaint investigation files for long-term care facilities.

(((6))) (7) The resident has the right to be free of interference, coercion, discrimination, and reprisal from a facility in exercising his or her rights, including the right to voice grievances about treatment furnished or not furnished. A facility that provides long-term care services shall not discriminate or retaliate in any manner against a resident, employee, or any other person on the basis or for the reason that such resident or any other person made a complaint to the department, the attorney general, law enforcement agencies, or the long-term care ombudsman, provided information, or otherwise cooperated with the investigation of such a complaint. Any attempt to discharge a resident against the resident's wishes, or any type of retaliatory treatment of a resident by whom or upon whose behalf a complaint substantiated by the department has been made to the department, the attorney general, law enforcement agencies, or the long-term care ombudsman, within one year of the filing of the complaint, raises a rebuttable presumption that such action was in retaliation for the filing of the complaint. "Retaliatory treatment" means, but is not limited to, monitoring a resident's phone, mail, or visits; involuntary seclusion or isolation; transferring a resident to a different room unless requested or based upon legitimate management reasons; withholding or threatening to withhold food or treatment unless authorized by a terminally ill resident or his or her representative pursuant to law; or persistently delaying responses to a resident's request for service or assistance. A facility that provides long-term care services shall not willfully interfere with the performance of official duties by a long-term care ombudsman. The department shall sanction and may impose a civil penalty of not more than three thousand dollars for a violation of this subsection ((and require the facility to mitigate any damages incurred by the resident)).

Sec. 211. RCW 70.129.105 and 1994 c 214 s 17 are each amended to read as follows:

No long-term care facility or nursing facility licensed under chapter 18.51 RCW shall require or request residents to sign waivers of potential liability for losses of personal property or injury, or to sign waivers of residents' rights set forth in this chapter or in the applicable licensing or certification laws.

Sec. 212. RCW 74.42.030 and 1979 ex.s. c 211 s 3 are each amended to read as follows:

Each resident or guardian or legal representative, if any, shall be fully informed and receive in writing, in a language the resident or his or her representative understands, the following information:

(1) The resident's rights and responsibilities in the facility;

(2) Rules governing resident conduct;

(3) Services, items, and activities available in the facility; and

(4) Charges for services, items, and activities, including those not included in the facility's basic daily rate or not paid by medicaid.

The facility shall provide this information before admission, or at the time of admission in case of emergency, and as changes occur during the resident's stay. The resident and his or her representative must be informed in writing in advance of changes in the availability or charges for services, items, or activities, or of changes in the facility's rules. Except in unusual circumstances, thirty days' advance notice must be given prior to the change. The resident or legal guardian or representative shall acknowledge in writing receipt of this information ((and any changes in the information)).

The written information provided by the facility pursuant to this section, and the terms of any admission contract executed between the facility and an individual seeking admission to the facility, must be consistent with the requirements of this chapter and chapter 18.51 RCW and, for facilities certified under medicaid or medicare, with the applicable federal requirements.

NEW SECTION. Sec. 213. A new section is added to chapter 18.20 RCW 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 resident-centered and promote privacy, independence, dignity, choice, and a home or home-like environment for residents consistent with chapter 70.129 RCW.

(2) The goal of the system is continuous quality improvement with the focus on resident satisfaction and outcomes for residents. This includes that when conducting licensing inspections, the department shall interview an appropriate percentage of residents, family members, and advocates in addition to interviewing appropriate staff.

(3) Facilities should be supported in their efforts to improve quality and address identified problems initially through training, consultation, and technical assistance.

(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 resident complaints and a clear set of health, quality of care, and safety standards that are easily understandable and have been made available to facilities.

(6) Prompt and specific enforcement remedies shall also be implemented without delay, consistent with RCW 18.20.190, for facilities found to have delivered care or failed to deliver care resulting in problems that are serious, recurring, or uncorrected, or that create a hazard that is causing or likely to cause death or serious harm to one or more residents. These enforcement remedies may also include, when appropriate, reasonable conditions on a license. In the selection of remedies, the safety, health, and well-being of residents shall be of paramount importance.

(7) To the extent funding is available, the licensee, administrator, and their staff should be screened through background checks in a uniform and timely manner to ensure that they do not have a criminal history that would disqualify them from working with vulnerable adults. Employees may be provisionally hired pending the results of the background check if they have been given three positive references.

(8) The department shall promote the development of a training system that is practical and relevant to the needs of residents and staff. To improve access to training, especially for rural communities, the training system may include, but is not limited to, the use of satellite technology distance learning that is coordinated through community colleges or other appropriate organizations.

(9) No licensee, administrator, or staff, or prospective licensee, administrator, or staff, with a stipulated finding of fact, conclusion of law, and agreed order, or finding of fact, conclusion of law, or final order issued by a disciplining authority, a court of law, or entered into the state registry finding him or her guilty of abuse, neglect, exploitation, or abandonment of a minor or a vulnerable adult as defined in chapter 74.34 RCW shall be employed in the care of and have unsupervised access to vulnerable adults.

NEW SECTION. Sec. 214. A new section is added to chapter 18.20 RCW to read as follows:

(1) The department shall establish and maintain a toll-free telephone number for receiving complaints regarding a facility that the department licenses.

(2) All facilities that are licensed under this chapter shall post in a place and manner clearly visible to residents and visitors the department's toll-free complaint telephone number and the toll-free number and program description of the long-term care ombudsman as provided by RCW 43.190.050.

(3) The department shall investigate complaints if the subject of the complaint is within its authority unless the department determines that: (a) The complaint is intended to willfully harass a licensee or employee of the licensee; or (b) there is no reasonable basis for investigation; or (c) corrective action has been taken as determined by the ombudsman or the department.

(4) The department shall refer complaints to appropriate state agencies, law enforcement agencies, the attorney general, the long-term care ombudsman, or other entities if the department lacks authority to investigate or if its investigation reveals that a follow-up referral to one or more of these entities is appropriate.

(5) The department shall adopt rules that include the following complaint investigation protocols:

(b) The complainant must be: Promptly contacted by the department, unless anonymous or unavailable despite several attempts by the department, and informed of the right to discuss alleged violations with the inspector and to provide other information the complainant believes will assist the inspector; informed of the department's course of action; and informed of the right to receive a written copy of the investigation report.

(d) Substantiated complaints involving harm to a resident, if an applicable law or regulation has been violated, shall be subject to one or more of the actions provided in RCW 18.20.190. Whenever appropriate, the department shall also give consultation and technical assistance to the facility.

(e) In the best practices of total quality management and continuous quality improvement, after a department finding of a violation that is serious, recurring, or uncorrected following a previous citation, the department shall make an on-site revisit of the facility to ensure correction of the violation. This subsection does not prevent the department from enforcing license suspensions or revocations.

(6) The department may provide the substance of the complaint to the licensee before the completion of the investigation by the department unless such disclosure would reveal the identity of a complainant, witness, or resident who chooses to remain anonymous. Neither the substance of the complaint provided to the licensee or contractor nor any copy of the complaint or related report published, released, or made otherwise available shall disclose, or reasonably lead to the disclosure of, the name, title, or identity of any complainant, or other person mentioned in the complaint, except that the name of the provider and the name or names of any officer, employee, or agent of the department conducting the investigation shall be disclosed after the investigation has been closed and the complaint has been substantiated. The department may disclose the identity of the complainant if such disclosure is requested in writing by the complainant. Nothing in this subsection shall be construed to interfere with the obligation of the long-term care ombudsman program to monitor the department's licensing, contract, and complaint investigation files for long-term care facilities.

(7) The resident has the right to be free of interference, coercion, discrimination, and reprisal from a facility in exercising his or her rights, including the right to voice grievances about treatment furnished or not furnished. A facility licensed under this chapter shall not discriminate or retaliate in any manner against a resident, employee, or any other person on the basis or for the reason that such resident or any other person made a complaint to the department, the attorney general, law enforcement agencies, or the long-term care ombudsman, provided information, or otherwise cooperated with the investigation of such a complaint. Any attempt to discharge a resident against the resident's wishes, or any type of retaliatory treatment of a resident by whom or upon whose behalf a complaint substantiated by the department has been made to the department, the attorney general, law enforcement agencies, or the long-term care ombudsman, within one year of the filing of the complaint, raises a rebuttable presumption that such action was in retaliation for the filing of the complaint. "Retaliatory treatment" means, but is not limited to, monitoring a resident's phone, mail, or visits; involuntary seclusion or isolation; transferring a resident to a different room unless requested or based upon legitimate management reasons; withholding or threatening to withhold food or treatment unless authorized by a terminally ill resident or his or her representative pursuant to law; or persistently delaying responses to a resident's request for service or assistance. A facility licensed under this chapter shall not willfully interfere with the performance of official duties by a long-term care ombudsman. The department shall sanction and may impose a civil penalty of not more than three thousand dollars for a violation of this subsection.

NEW SECTION. Sec. 215. Within existing funds, the long-term care ombudsman shall conduct a follow-up review of the department of health's licensing inspections and complaint investigations of boarding homes and of the department of social and health services' monitoring of boarding homes with contracts under chapter 74.39A RCW. The review must include, but is not limited to, an examination of the enforcement of resident rights and care standards in boarding homes, the timeliness of complaint investigations, and compliance by the departments with the standards set forth in this act. The long-term care ombudsman shall consult with the departments of health and social and health services, long-term care facility organizations, resident groups, and senior and disabled citizen organizations and report to appropriate committees of the house of representatives and the senate concerning its review of the departments' enforcement activities and any applicable recommendations by January 5, 1998.

Sec. 216. RCW 74.42.450 and 1995 1st sp.s. c 18 s 64 are each amended to read as follows:

(1) The facility shall admit as residents only those individuals whose needs can be met by:

(a) The facility;

(b) The facility cooperating with community resources; or

(2) The facility shall transfer a resident to a hospital or other appropriate facility when a change occurs in the resident's physical or mental condition that requires care or service that the facility cannot provide. The resident, the resident's guardian, if any, the resident's next of kin, the attending physician, and the department shall be consulted at least fifteen days before a transfer or discharge unless the resident is transferred under emergency circumstances. The department shall use casework services or other means to insure that adequate arrangements are made to meet the resident's needs.

(3) A resident shall be transferred or discharged only for medical reasons, the resident's welfare or request, the welfare of other residents, or nonpayment. A resident may not be discharged for nonpayment if the discharge would be prohibited by the medicaid program.

(4) If a resident chooses to remain in the nursing facility, the department shall respect that choice, provided that if the resident is a medicaid recipient, the resident continues to require a nursing facility level of care.

(5) If the department determines that a resident no longer requires a nursing facility level of care, the resident shall not be discharged from the nursing facility until at least thirty days after written notice is given to the resident, the resident's surrogate decision maker and, if appropriate, a family member or the resident's representative. A form for requesting a hearing to appeal the discharge decision shall be attached to the written notice. The written notice shall include at least the following:

(a) The reason for the discharge;

(b) A statement that the resident has the right to appeal the discharge; and

(6) If the resident appeals a department discharge decision, the resident shall not be discharged without the resident's consent until at least thirty days after a final order is entered upholding the decision to discharge the resident.

(7) Before the facility transfers or discharges a resident, the facility must first attempt through reasonable accommodations to avoid the transfer or discharge unless the transfer or discharge is agreed to by the resident. The facility shall admit or retain only individuals whose needs it can safely and appropriately serve in the facility with available staff or through the provision of reasonable accommodations required by state or federal law. "Reasonable accommodations" has the meaning given to this term under the federal Americans with disabilities act of 1990, 42 U.S.C. Sec. 12101 et seq. and other applicable federal or state antidiscrimination laws and regulations.

PART III

ESTATE RECOVERY CONSUMER DISCLOSURE

NEW SECTION. Sec. 301. A new section is added to chapter 43.20B RCW to read as follows:

(1) It is the intent of the legislature to ensure that needy individuals have access to basic long-term care without requiring them to sell their homes. In the face of rising medical costs and limited funding for social welfare programs, however, the state's medicaid and state-funded long-term care programs have placed an increasing financial burden on the state. By balancing the interests of individuals with immediate and future unmet medical care needs, surviving spouses and dependent children, adult nondependent children, more distant heirs, and the state, the estate recovery provisions of RCW 43.20B.080 and 74.39A.170 provide an equitable and reasonable method of easing the state's financial burden while ensuring the continued viability of the medicaid and state-funded long-term care programs.

(2) It is further the intent of the legislature to confirm that chapter 21, Laws of 1994, effective July 1, 1994, repealed and substantially reenacted the state's medicaid estate recovery laws and did not eliminate the department's authority to recover the cost of medical assistance paid prior to October 1, 1993, from the estates of deceased recipients regardless of whether they received benefits before, on, or after July 1, 1994.

Sec. 302. RCW 43.20B.080 and 1995 1st sp.s. c 18 s 67 are each amended to read as follows:

(1) The department shall file liens, seek adjustment, or otherwise effect recovery for medical assistance correctly paid on behalf of an individual ((as required by this chapter and)) consistent with 42 U.S.C. Sec. 1396p.

(2) Liens may be adjusted by foreclosure in accordance with chapter 61.12 RCW.

(3) In the case of an individual who was fifty-five years of age or older when the individual received medical assistance, the department shall seek adjustment or recovery from the individual's estate, and from nonprobate assets of the individual as defined by RCW 11.02.005 ((except property passing through a community property agreement)), but only for medical assistance consisting of nursing facility services, home and community-based services, other services that the department determines to be appropriate, and related hospital and prescription drug services. Recovery from the individual's estate, including foreclosure of liens imposed under this section, shall be undertaken as soon as practicable, consistent with ((the requirements of)) 42 U.S.C. Sec. 1396p.

(4) The department shall apply the medical assistance estate recovery law as it existed on the date that benefits were received when calculating an estate's liability to reimburse the department for those benefits.

(5)(a) The department shall establish procedures consistent with standards established by the federal department of health and human services and pursuant to 42 U.S.C. Sec. 1396p to waive recovery when such recovery would work an undue hardship.

(b) Recovery of medical assistance from a recipient's estate shall not include property made exempt from claims by federal law or treaty, including exemption for tribal artifacts that may be held by individual Native Americans.

(((5))) (6) A lien authorized under subsections (1) through (5) of this section relates back to attach to any real property that the decedent had an ownership interest in immediately before death and is effective as of that date.

(7) The department is authorized to adopt rules to effect recovery under this section. The department may adopt by rule later enactments of the federal laws referenced in this section.

(8) The office of financial management shall review the cost and feasibility of the department of social and health services collecting the client copayment for long-term care consistent with the terms and conditions of RCW 74.39A.120, and the cost impact to community providers under the current system for collecting the client's copayment in addition to the amount charged to the client for estate recovery, and report to the legislature by December 12, 1997.

Sec. 303. RCW 74.34.010 and 1995 1st sp.s. c 18 s 82 are each amended to read as follows:

The legislature finds that frail elders and vulnerable adults may be subjected to abuse, neglect, exploitation, or abandonment. The legislature finds that there are a number of adults sixty years of age or older who lack the ability to perform or obtain those services necessary to maintain or establish their well-being. The legislature finds that many frail elders and vulnerable adults have health problems that place them in a dependent position. The legislature further finds that a significant number of frail elders and vulnerable adults have mental and verbal limitations that leave them vulnerable and incapable of asking for help and protection.

It is the intent of the legislature to prevent or remedy the abuse, neglect, exploitation, or abandonment of persons sixty years of age or older who have a functional, mental, or physical inability to care for or protect themselves.

It is the intent of the legislature to assist frail elders and vulnerable adults by providing these persons with the protection of the courts and with the least-restrictive services, such as home care, and by preventing or reducing inappropriate institutional care. The legislature finds that it is in the interests of the public health, safety, and welfare of the people of the state to provide a procedure for identifying these vulnerable persons and providing the services and remedies necessary for their well-being.

It is further the intent of the legislature that the cost of protective services rendered to a frail elder or vulnerable adult under this chapter that are paid with state funds only not be subject to recovery from the recipient or the recipient's estate, whether by lien, adjustment, or any other means of recovery, regardless of the income or assets of the recipient of the services. In making this exemption the legislature recognizes that receipt of such services is voluntary and incentives to decline services or delay permission must be kept to a minimum. There may be a need to act or intervene quickly to protect the assets, health, or well-being of a frail elder or vulnerable adult; to prevent or halt the exploitation, neglect, abandonment, or abuse of the person or assets of a frail elder or vulnerable adult; or to prevent or limit inappropriate placement or retention in an institution providing long-term care. The delivery of such services is less likely to be impeded, and consent to such services will be more readily obtained, if the cost of these services is not subject to recovery. The legislature recognizes that there will be a cost in not seeking financial recovery for such services, but that this cost may be offset by preventing costly and inappropriate institutional placement.

NEW SECTION. Sec. 304. A new section is added to chapter 74.34 RCW to read as follows:

The cost of benefits and services provided to a frail elder or vulnerable adult under this chapter with state funds only does not constitute an obligation or lien and is not recoverable from the recipient of the services or from the recipient's estate, whether by lien, adjustment, or any other means of recovery.

Sec. 305. RCW 74.39A.170 and 1995 1st sp.s. c 18 s 56 are each amended to read as follows:

(1) All payments made in state-funded long-term care shall be recoverable as if they were medical assistance payments subject to recovery under 42 U.S.C. Sec. 1396p and chapter 43.20B RCW((, but)) without regard to the recipient's age, except the cost of state-funded adult protective services provided under chapter 74.34 RCW to frail elders and vulnerable adults.

(2) In determining eligibility for state-funded long-term care services programs, except for protective services provided to frail elders and vulnerable adults, the department shall impose the same rules with respect to the transfer of assets for less than fair market value as are imposed under 42 U.S.C. 1396p with respect to nursing home and home and community services.

(3) It is the responsibility of the department to fully disclose in advance verbally and in writing, in easy to understand language, the terms and conditions of estate recovery. The disclosure must include billing and recovery and copayment procedures to all persons offered long-term care services subject to recovery of payments.

(4) It is the intent of the legislature that the department collect, to the extent possible, all costs associated with the individual provider program including, but not limited to, training, taxes, and fringe benefits.

By November 15, 1997, the secretary shall identify and report to the legislature:

(a) The costs of identifying or tracking direct and indirect costs associated with the individual provider program, including any necessary changes to the department's information systems; and

(b) Any federal or state laws limiting the department's ability to recover direct or indirect costs of the individual provider program from the estate.

(5) To the extent funds are available and in compliance with federal law, the department is responsible for also notifying the client, or his or her advocate, quarterly of the types of services used, charges for services, credit amount of copayment, and the difference (debt) that will be charged against the estate.

PART IV

ADULT FAMILY HOMES

Sec. 401. RCW 70.128.175 and 1995 1st sp.s. c 18 s 29 are each amended to read as follows:

(1) Unless the context clearly requires otherwise, these definitions shall apply throughout this section and RCW 35.63.140, 35A.63.149, 36.70.755, 35.22.680, and 36.32.560:

(a) "Adult family home" means a regular family abode ((of)) in which a person or persons ((providing)) provides personal care, special care, room, and board to more than one but not more than six adults who are not related by blood or marriage to the person or persons providing the services.

(b) "Residential care facility" means a facility that cares for at least five, but not more than fifteen functionally disabled persons, that is not licensed pursuant to chapter 70.128 RCW.

(2) An adult family home shall be considered a residential use of property for zoning and public and private utility rate purposes. Adult family homes shall be a permitted use in all areas zoned for residential or commercial purposes, including areas zoned for single family dwellings.

NEW SECTION. Sec. 402. The department of social and health services shall implement a limited moratorium on the authorization of adult family home licenses until December 12, 1997, or until the secretary has determined that all adult family home and group home safety and quality of care standards have been reviewed by the department, determined by the secretary to reasonably protect the life, safety, and health of residents, and has notified all adult family home and group home operators of the standards of care or any modifications to the existing standards. This limited moratorium shall in no way prevent a person eligible to receive services from receiving the same or equivalent chronic long-term care services. In the event of a need for such services, the department shall develop a process for determining the availability of chronic long-term care residential services on a case-by-case basis to determine if an adult family home license should be granted to accommodate the needs of a particular geographical or ethnic community. The department may review the cost and feasibility of creating an adult family home advisory committee. The secretary shall make the final determination on individual case licensure until December 12, 1997, or until the moratorium has been removed and determine if an adult family home advisory committee should be developed.

NEW SECTION. Sec. 403. The department of social and health services is authorized to adopt rules, including emergency rules, for implementing the provisions of section 402 of this act.

PART V

MISCELLANEOUS PROVISIONS

NEW SECTION. Sec. 501. The department of health in cooperation with the department of social and health services may develop a plan for implementing a pilot program for accrediting boarding homes licensed under RCW 18.20.020 with a recognized national nongovernmental accreditation organization or an organization with experience in developing and implementing accreditation programs in at least two states. The pilot plan, if funded, shall be developed with the input of residents, provider representatives, and other vested interest groups. If funded, the plan shall review the overall feasibility of implementation, cost or savings to the department of health, impact on client health and safety, and financial and other impacts to the boarding industry. If funded, the pilot boarding home accreditation plan shall be presented to the appropriate committees of the house of representatives and the senate by January 5, 1998.

NEW SECTION. Sec. 502. The department of community, trade, and economic development, in collaboration with the organizations designated by state or federal law to provide protection and advocacy and ombuds services for older Americans and people with disabilities using publicly funded long-term care residential services, may conduct a study, make recommendations, and draft legislation necessary to implement changes that will result in a single coordinating umbrella for ombuds and advocacy services that maximizes efficiency, minimizes duplication, and allows for specialization in target populations such as developmental disabilities, older Americans, and mental illness, and assures that the providers of ombuds services have sufficient expertise and experience with target populations and the systems that serve them. The study, if funded, shall include review of all relevant federal and state laws and regulations, including but not limited to the older Americans act, 42 U.S.C. 3001 as amended, the developmental disabilities assistance and bill of rights act as amended, 42 U.S.C. 6000, the protection and advocacy for persons with mental illness act as amended, 42 U.S.C. 10801, the rehabilitation act of 1973 as amended, 29 U.S.C. 701, the long-term care ombudsman statute chapter 43.190 RCW, developmental disabilities statute, Title 71A RCW, and the community mental health services regulations, chapter 275-57 WAC. If funded, the study shall identify the gaps in current ombuds and advocacy services, and develop a cost assessment for implementation of a comprehensive umbrella of ombuds and advocacy services. If funded, the department of community, trade, and economic development shall report to the appropriate committees of the house of representatives and the senate by January 10, 1998.

NEW SECTION. Sec. 503. The department of social and health services may review the cost and feasibility of implementing developmental disabilities certification standards for community residential alternatives to ensure that services are adequate for the health, safety, care, treatment, and support of persons with developmental disabilities. The community residential alternatives shall include, but not be limited to, entities that contract or directly provide services with the division of developmental disabilities such as group homes, agency alternative living, intensive and other tenant support services, adult family homes, or boarding homes. Certification standards shall review at a minimum the following areas. Administrative and financial capabilities of the provider, health and safety practices, the opportunities for the individuals served by the programs to have power and choice in their lives, opportunities to develop friendships and relationships, and opportunities to develop self-respect and to gain respect from others, to participate in the community, and to gain independent living skills. If the review is funded, the department shall also recommend whether adult family homes that choose to provide services only to persons with developmental disabilities should receive special certification or licensure apart from or in place of the existing adult family home license. The review may also recommend the type and amount of provider training necessary to appropriately support persons with developmental disabilities in community residential alternatives. The department may include the assistance of other departments, vested interest groups, and family members in the development of recommendations. If funded, the department shall report to the appropriate committees of the house of representatives and the senate by January 30, 1998.

NEW SECTION. Sec. 504. Any section or provision of this act that may be susceptible to more than one construction shall be interpreted in favor of the construction most likely to comply with federal laws entitling this state to receive federal funds for the various programs of the department of health or the department of social and health services. If any section of this act is found to be in conflict with federal requirements that are a prescribed condition of the allocation of federal funds to the state, or to any departments or agencies thereof, the conflicting part is declared to be inoperative solely to the extent of the conflict. The rules issued under this act shall meet federal requirements that are a necessary condition to the receipt of federal funds by the state.

NEW SECTION. Sec. 505. A new section is added to chapter 43.70 RCW to read as follows:

The department of health shall implement a nursing home resident protection program in cooperation with the department of social and health services and disciplining authorities and according to guidelines established by the federal health care financing administration. The department of social and health services shall retain authority to review and investigate all allegations of nursing home resident neglect, abuse, and misappropriation of resident property. If the department of social and health services makes a preliminary determination, based upon credible evidence and an investigation by the department, that a licensed, certified, or registered health care provider listed in RCW 18.130.040 and used by the nursing home to provide services to a resident, except for a certified or registered nursing assistant, has neglected or abused a resident or misappropriated a resident's property, the department of social and health services shall immediately refer its determination regarding the individual to the appropriate disciplining authority, as defined in chapter 18.130 RCW. The disciplining authority shall pursue administrative adjudicatory or disciplinary proceedings according to federal timelines and requirements, and consistent with the administrative procedure act, chapter 34.05 RCW. The secretary of social and health services shall be consulted in the consideration of any complaint referred to the secretary of health and the other disciplining authorities. If the disciplining authority fails to comply with the applicable requirements of federal law, jurisdiction on the individual case shall revert to the secretary of social and health services. The secretary of social and health services and the secretary of health shall enter into an interagency agreement to implement the provisions of this section. A finding of fact, stipulated finding of fact, agreed order, or final order issued by the disciplining authority that finds the individual health care provider guilty of neglect, abuse, or misappropriation of resident property shall be promptly reported to the department of social and health services. The disciplining authority shall not make a finding that an individual has neglected a resident if the individual demonstrates that such neglect was caused by factors beyond the control of the individual.

NEW SECTION. Sec. 506. A new section is added to chapter 18.51 RCW to read as follows:

The department of social and health services shall implement a nursing home resident protection program in cooperation with the department of health and disciplining authorities and according to guidelines established by the federal health care financing administration. The department of social and health services shall conduct a timely review and investigation of all credible allegations of nursing home resident neglect, abuse, and misappropriation of resident property. If the department of social and health services makes a preliminary determination, based upon credible evidence and an investigation by the department, that a licensed, certified, or registered health care provider listed in RCW 18.130.040 and used by the nursing home to provide services to a resident, except for a certified or registered nursing assistant, has neglected or abused a resident or misappropriated a resident's property, the department of social and health services shall immediately refer its determination regarding the individual to the department of health or disciplining authority, as defined in RCW 18.130.020. The disciplining authority, and not the department of social and health services for individuals referred to the disciplining authority, shall pursue administrative adjudicatory or disciplinary proceedings according to federal timelines and requirements, and consistent with the administrative procedure act, chapter 34.05 RCW. Other individuals used by a nursing home, including certified and registered nursing assistants, with a preliminary determination of neglect, abuse, or misappropriation of resident property shall receive notice and the right to an administrative fair hearing from the department of social and health services according to federal timelines and requirements, and consistent with the administrative procedure act, chapter 34.05 RCW. An individual with a finding of fact, stipulated finding of fact, agreed order, or final order issued by the department of social and health services that finds the individual guilty of neglect, abuse, or misappropriation of resident property shall not be employed in the care of and have unsupervised access to vulnerable adults, as defined in chapter 74.34 RCW. The department shall not make a finding that an individual has neglected a resident if the individual demonstrates that such neglect was caused by factors beyond the control of the individual. Upon receipt from the disciplining authority of a finding of fact, stipulated finding of fact, agreed order, or final order that finds the individual health care provider guilty of neglect, abuse, or misappropriation of resident property, the department of social and health services shall report this information to the nursing home where the incident occurred, the long-term care facility where the individual works, if different, and other entities serving vulnerable adults upon request by the entity.

NEW SECTION. Sec. 507. A new section is added to chapter 9A.42 RCW to read as follows:

The legislature finds that there is a significant need to protect children and dependent persons, including frail elder and vulnerable adults, from abuse and neglect by their parents, by persons entrusted with their physical custody, or by persons employed to provide them with the basic necessities of life. The legislature further finds that such abuse and neglect often takes the forms of either withholding from them the basic necessities of life, including food, water, shelter, clothing, and health care, or abandoning them, or both. Therefore, it is the intent of the legislature that criminal penalties be imposed on those guilty of such abuse or neglect. It is the intent of the legislature that a person who, in good faith, is furnished Christian Science treatment by a duly accredited Christian Science practitioner in lieu of medical care is not considered deprived of medically necessary health care or abandoned. Prosecutions under this chapter shall be consistent with the rules of evidence, including hearsay, under law.

Sec. 508. RCW 9A.42.010 and 1996 c 302 s 1 are each amended to read as follows:

As used in this chapter:

(1) "Basic necessities of life" means food, water, shelter, clothing, and medically necessary health care, including but not limited to health-related treatment or activities, hygiene, oxygen, and medication.

(2)(a) "Bodily injury" means physical pain or injury, illness, or an impairment of physical condition;

(b) "Substantial bodily harm" means bodily injury which involves a temporary but substantial disfigurement, or which causes a temporary but substantial loss or impairment of the function of any bodily part or organ, or which causes a fracture of any bodily part;

(c) "Great bodily harm" means bodily injury which creates a high probability of death, or which causes serious permanent disfigurement, or which causes a permanent or protracted loss or impairment of the function of any bodily part or organ.

(3) "Child" means a person under eighteen years of age.

(4) "Dependent person" means a person who, because of physical or mental disability, or because of extreme advanced age, is dependent upon another person to provide the basic necessities of life. A resident of a nursing home, as defined in RCW 18.51.010, a resident of an adult family home, as defined in RCW 70.128.010, and a frail elder or vulnerable adult, as defined in RCW 74.34.020(8), is presumed to be a dependent person for purposes of this chapter.

(5) "Employed" means hired by a dependent person, another person acting on behalf of a dependent person, or by an organization or governmental entity, to provide to a dependent person any of the basic necessities of life. A person may be "employed" regardless of whether the person is paid for the services or, if paid, regardless of who pays for the person's services.

(6) "Parent" has its ordinary meaning and also includes a guardian and the authorized agent of a parent or guardian.

(7) "Abandons" means leaving a child or other dependent person without the means or ability to obtain one or more of the basic necessities of life.

Sec. 509. RCW 9A.42.050 and 1986 c 250 s 5 are each amended to read as follows:

In any prosecution for criminal mistreatment, it shall be a defense that the withholding of the basic necessities of life is due to financial inability only if the person charged has made a reasonable effort to obtain adequate assistance. This defense is available to a person employed to provide the basic necessities of life only when the agreed-upon payment has not been made.

Sec. 510. RCW 9A.42.020 and 1986 c 250 s 2 are each amended to read as follows:

(1) A parent of a child ((or)), the person entrusted with the physical custody of a child or dependent person, or a person employed to provide to the child or dependent person the basic necessities of life is guilty of criminal mistreatment in the first degree if he or she recklessly, as defined in RCW 9A.08.010, causes great bodily harm to a child or dependent person by withholding any of the basic necessities of life.

(2) Criminal mistreatment in the first degree is a class B felony.

Sec. 511. RCW 9A.42.030 and 1986 c 250 s 3 are each amended to read as follows:

(1) A parent of a child ((or)), the person entrusted with the physical custody of a child or dependent person, or a person employed to provide to the child or dependent person the basic necessities of life is guilty of criminal mistreatment in the second degree if he or she recklessly, as defined in RCW 9A.08.010, either (a) creates an imminent and substantial risk of death or great bodily harm, or (b) causes substantial bodily harm by withholding any of the basic necessities of life.

(2) Criminal mistreatment in the second degree is a class C felony.

NEW SECTION. Sec. 512. A new section is added to chapter 9A.42 RCW to read as follows:

RCW 9A.42.020 and 9A.42.030 do not apply when a terminally ill person or his or her designee requests palliative care and the person receives palliative care from a licensed home health agency, hospice agency, nursing home, or hospital who is providing care under the medical direction of a physician.

Sec. 513. RCW 9A.44.010 and 1994 c 271 s 302 are each amended to read as follows:

As used in this chapter:

(1) "Sexual intercourse" (a) has its ordinary meaning and occurs upon any penetration, however slight, and

(b) Also means any penetration of the vagina or anus however slight, by an object, when committed on one person by another, whether such persons are of the same or opposite sex, except when such penetration is accomplished for medically recognized treatment or diagnostic purposes, and

(c) Also means any act of sexual contact between persons involving the sex organs of one person and the mouth or anus of another whether such persons are of the same or opposite sex.

(2) "Sexual contact" means any touching of the sexual or other intimate parts of a person done for the purpose of gratifying sexual desire of either party or a third party.

(3) "Married" means one who is legally married to another, but does not include a person who is living separate and apart from his or her spouse and who has filed in an appropriate court for legal separation or for dissolution of his or her marriage.

(4) "Mental incapacity" is that condition existing at the time of the offense which prevents a person from understanding the nature or consequences of the act of sexual intercourse whether that condition is produced by illness, defect, the influence of a substance or from some other cause.

(5) "Physically helpless" means a person who is unconscious or for any other reason is physically unable to communicate unwillingness to an act.

(6) "Forcible compulsion" means physical force which overcomes resistance, or a threat, express or implied, that places a person in fear of death or physical injury to herself or himself or another person, or in fear that she or he or another person will be kidnapped.

(7) "Consent" means that at the time of the act of sexual intercourse or sexual contact there are actual words or conduct indicating freely given agreement to have sexual intercourse or sexual contact.

(8) "Significant relationship" means a situation in which the perpetrator is:

(a) A person who undertakes the responsibility, professionally or voluntarily, to provide education, health, welfare, or organized recreational activities principally for minors; ((or))

(b) A person who in the course of his or her employment supervises minors; or

(c) A person who provides welfare, health or residential assistance, personal care, or organized recreational activities to frail elders or vulnerable adults, including a provider, employee, temporary employee, volunteer, or independent contractor who supplies services to long-term care facilities licensed or required to be licensed under chapter 18.20, 18.51, 72.36, or 70.128 RCW, and home health, hospice, or home care agencies licensed or required to be licensed under chapter 70.127 RCW, but not including a consensual sexual partner.

(9) "Abuse of a supervisory position" means a direct or indirect threat or promise to use authority to the detriment or benefit of a minor.

(10) "Developmentally disabled," for purposes of RCW 9A.44.050(1)(c) and 9A.44.100(1)(c), means a person with a developmental disability as defined in RCW 71A.10.020.

(11) "Person with supervisory authority," for purposes of RCW 9A.44.050(1) (c) or (e) and 9A.44.100(1) (c) or (e), means any proprietor or employee of any public or private care or treatment facility who directly supervises developmentally disabled, mentally disordered, or chemically dependent persons at the facility.

(12) "Mentally disordered person" for the purposes of RCW 9A.44.050(1)(e) and 9A.44.100(1)(e) means a person with a "mental disorder" as defined in RCW 71.05.020(2).

(13) "Chemically dependent person" for purposes of RCW 9A.44.050(1)(e) and 9A.44.100(1)(e) means a person who is "chemically dependent" as defined in RCW 70.96A.020(4).

(14) "Health care provider" for purposes of RCW 9A.44.050 and 9A.44.100 means a person who is, holds himself or herself out to be, or provides services as if he or she were: (a) A member of a health care profession under chapter 18.130 RCW; or (b) registered or certified under chapter 18.19 RCW, regardless of whether the health care provider is licensed, certified, or registered by the state.

(15) "Treatment" for purposes of RCW 9A.44.050 and 9A.44.100 means the active delivery of professional services by a health care provider which the health care provider holds himself or herself out to be qualified to provide.

(16) "Frail elder or vulnerable adult" means a person sixty years of age or older who has the functional, mental, or physical inability to care for himself or herself. "Frail elder or vulnerable adult" also includes a person found incapacitated under chapter 11.88 RCW, a person over eighteen years of age who has a developmental disability under chapter 71A.10 RCW, a person admitted to a long-term care facility that is licensed or required to be licensed under chapter 18.20, 18.51, 72.36, or 70.128 RCW, and a person receiving services from a home health, hospice, or home care agency licensed or required to be licensed under chapter 70.127 RCW.

Sec. 514. RCW 9A.44.050 and 1993 c 477 s 2 are each amended to read as follows:

(1) A person is guilty of rape in the second degree when, under circumstances not constituting rape in the first degree, the person engages in sexual intercourse with another person:

(a) By forcible compulsion;

(b) When the victim is incapable of consent by reason of being physically helpless or mentally incapacitated;

(c) When the victim is developmentally disabled and the perpetrator is a person who is not married to the victim and who has supervisory authority over the victim;

(d) When the perpetrator is a health care provider, the victim is a client or patient, and the sexual intercourse occurs during a treatment session, consultation, interview, or examination. It is an affirmative defense that the defendant must prove by a preponderance of the evidence that the client or patient consented to the sexual intercourse with the knowledge that the sexual intercourse was not for the purpose of treatment; ((or))

(e) When the victim is a resident of a facility for mentally disordered or chemically dependent persons and the perpetrator is a person who is not married to the victim and has supervisory authority over the victim; or

(f) When the victim is a frail elder or vulnerable adult and the perpetrator is a person who is not married to the victim and who has a significant relationship with the victim.

(2) Rape in the second degree is a class A felony.

Sec. 515. RCW 9A.44.100 and 1993 c 477 s 3 are each amended to read as follows:

(1) A person is guilty of indecent liberties when he knowingly causes another person who is not his spouse to have sexual contact with him or another:

(a) By forcible compulsion; ((or))

(b) When the other person is incapable of consent by reason of being mentally defective, mentally incapacitated, or physically helpless;

(c) When the victim is developmentally disabled and the perpetrator is a person who is not married to the victim and who has supervisory authority over the victim;

(d) When the perpetrator is a health care provider, the victim is a client or patient, and the sexual contact occurs during a treatment session, consultation, interview, or examination. It is an affirmative defense that the defendant must prove by a preponderance of the evidence that the client or patient consented to the sexual contact with the knowledge that the sexual contact was not for the purpose of treatment; ((or))

(f) When the victim is a frail elder or vulnerable adult and the perpetrator is a person who is not married to the victim and who has a significant relationship with the victim.

(2) Indecent liberties is a class B felony.

Sec. 516. RCW 18.130.040 and 1996 c 200 s 32 and 1996 c 81 s 5 are each reenacted and amended to read as follows:

(1) This chapter applies only to the secretary and the boards and commissions having jurisdiction in relation to the professions licensed under the chapters specified in this section. This chapter does not apply to any business or profession not licensed under the chapters specified in this section.

(2)(a) The secretary has authority under this chapter in relation to the following professions:

(i) Dispensing opticians licensed under chapter 18.34 RCW;

(ii) Naturopaths licensed under chapter 18.36A RCW;

(iii) Midwives licensed under chapter 18.50 RCW;

(iv) Ocularists licensed under chapter 18.55 RCW;

(v) Massage operators and businesses licensed under chapter 18.108 RCW;

(vi) Dental hygienists licensed under chapter 18.29 RCW;

(vii) Acupuncturists licensed under chapter 18.06 RCW;

(viii) Radiologic technologists certified and X-ray technicians registered under chapter 18.84 RCW;

(ix) Respiratory care practitioners certified under chapter 18.89 RCW;

(x) Persons registered or certified under chapter 18.19 RCW;

(xi) Persons registered as nursing pool operators under chapter 18.52C RCW;

(xii) Nursing assistants registered or certified under chapter ((18.79)) 18.88A RCW;

(xiii) Health care assistants certified under chapter 18.135 RCW;

(xiv) Dietitians and nutritionists certified under chapter 18.138 RCW;

(xv) Sex offender treatment providers certified under chapter 18.155 RCW;

(xvi) Persons licensed and certified under chapter 18.73 RCW or RCW 18.71.205;

(xvii) Persons registered as adult family home providers and resident managers under RCW 18.48.020; and

(xviii) Denturists licensed under chapter 18.30 RCW.

(b) The boards and commissions having authority under this chapter are as follows:

(i) The podiatric medical board as established in chapter 18.22 RCW;

(ii) The chiropractic quality assurance commission as established in chapter 18.25 RCW;

(iii) The dental quality assurance commission as established in chapter 18.32 RCW;

(iv) The board of hearing and speech as established in chapter 18.35 RCW;

(v) The board of examiners for nursing home administrators as established in chapter 18.52 RCW;

(vi) The optometry board as established in chapter 18.54 RCW governing licenses issued under chapter 18.53 RCW;

(vii) The board of osteopathic medicine and surgery as established in chapter 18.57 RCW governing licenses issued under chapters 18.57 and 18.57A RCW;

(viii) The board of pharmacy as established in chapter 18.64 RCW governing licenses issued under chapters 18.64 and 18.64A RCW;

(ix) The medical quality assurance commission as established in chapter 18.71 RCW governing licenses and registrations issued under chapters 18.71 and 18.71A RCW;

(x) The board of physical therapy as established in chapter 18.74 RCW;

(xi) The board of occupational therapy practice as established in chapter 18.59 RCW;

(xii) The nursing care quality assurance commission as established in chapter 18.79 RCW governing licenses issued under that chapter;

(xiii) The examining board of psychology and its disciplinary committee as established in chapter 18.83 RCW; and

(xiv) The veterinary board of governors as established in chapter 18.92 RCW.

(3) In addition to the authority to discipline license holders, the disciplining authority has the authority to grant or deny licenses based on the conditions and criteria established in this chapter and the chapters specified in subsection (2) of this section. This chapter also governs any investigation, hearing, or proceeding relating to denial of licensure or issuance of a license conditioned on the applicant's compliance with an order entered pursuant to RCW 18.130.160 by the disciplining authority.

(4) All disciplining authorities shall adopt procedures to ensure substantially consistent application of this chapter, the Uniform Disciplinary Act, among the disciplining authorities listed in subsection (2) of this section.

Sec. 517. RCW 18.130.200 and 1986 c 259 s 12 are each amended to read as follows:

A person who attempts to obtain ((or)), obtains, or attempts to maintain a license by willful misrepresentation or fraudulent representation is guilty of a gross misdemeanor.

Sec. 518. RCW 43.43.842 and 1992 c 104 s 1 are each amended to read as follows:

(1)(a) The secretary of social and health services and the secretary of health shall adopt additional requirements for the licensure or relicensure of agencies ((or)), facilities ((which)), and licensed individuals who provide care and treatment to vulnerable adults. These additional requirements shall ensure that any person associated with a licensed agency or facility having ((direct contact)) unsupervised access with a vulnerable adult shall not have been: (((a))) (i) Convicted of a crime against persons as defined in RCW 43.43.830, except as provided in this section; (((b))) (ii) convicted of crimes relating to financial exploitation as defined in RCW 43.43.830, except as provided in this section; (((c))) (iii) found in any disciplinary board final decision to have abused a vulnerable adult under RCW 43.43.830; or (((d))) (iv) the subject in a protective proceeding under chapter 74.34 RCW.

(b) A person associated with a licensed agency or facility who has unsupervised access with a vulnerable adult shall make the disclosures specified in RCW 43.43.834(2). The person shall make the disclosures in writing, sign, and swear to the contents under penalty of perjury. The person shall, in the disclosures, specify all crimes against children or other persons, and all crimes relating to financial exploitation as defined in RCW 43.43.830, committed by the person.

(2) The rules adopted under this section shall permit the licensee to consider the criminal history of an applicant for employment in a licensed facility when the applicant has one or more convictions for a past offense and:

(a) The offense was simple assault, assault in the fourth degree, or the same offense as it may be renamed, and three or more years have passed between the most recent conviction and the date of application for employment;

(b) The offense was prostitution, or the same offense as it may be renamed, and three or more years have passed between the most recent conviction and the date of application for employment;

(c) The offense was theft in the third degree, or the same offense as it may be renamed, and three or more years have passed between the most recent conviction and the date of application for employment;

(d) The offense was theft in the second degree, or the same offense as it may be renamed, and five or more years have passed between the most recent conviction and the date of application for employment;

(e) The offense was forgery, or the same offense as it may be renamed, and five or more years have passed between the most recent conviction and the date of application for employment.

The offenses set forth in (a) through (e) of this subsection do not automatically disqualify an applicant from employment by a licensee. Nothing in this section may be construed to require the employment of any person against a licensee's judgment.

In consultation with law enforcement personnel, the secretary of social and health services and the secretary of health shall investigate the conviction record and the protection proceeding record information under this chapter ((43.43 RCW)) of each agency or facility and its staff under their respective jurisdictions seeking licensure or relicensure. An individual responding to a criminal background inquiry request from his or her employer or potential employer shall disclose the information about his or her criminal history under penalty of perjury. The secretaries shall use the information solely for the purpose of determining eligibility for licensure or relicensure. Criminal justice agencies shall provide the secretaries such information as they may have and that the secretaries may require for such purpose.

Sec. 519. RCW 70.124.020 and 1996 c 178 s 24 are each amended to read as follows:

Unless the context requires otherwise, the definitions in this section apply throughout this chapter.

(1) "Court" means the superior court of the state of Washington.

(2) "Law enforcement agency" means the police department, the director of public safety, or the office of the sheriff.

(3) "Practitioner of the healing arts" or "practitioner" means a person licensed by this state to practice podiatric medicine and surgery, optometry, pharmacy, physical therapy, chiropractic, nursing, dentistry, osteopathic medicine and surgery, or medicine and surgery. The term "practitioner" shall include a nurses aide, a nursing home administrator licensed under chapter 18.52 RCW, and a duly accredited Christian Science practitioner: PROVIDED, HOWEVER, That a nursing home patient who is being furnished Christian Science treatment by a duly accredited Christian Science practitioner shall not be considered, for that reason alone, a neglected patient for the purposes of this chapter.

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

(5) "Nursing home" has the meaning prescribed by RCW 18.51.010.

(6) "Social worker" means anyone engaged in a professional capacity during the regular course of employment in encouraging or promoting the health, welfare, support, or education of nursing home patients, or providing social services to nursing home patients, whether in an individual capacity or as an employee or agent of any public or private organization or institution.

(7) "Psychologist" means any person licensed to practice psychology under chapter 18.83 RCW, whether acting in an individual capacity or as an employee or agent of any public or private organization or institution.

(8) "Pharmacist" means any registered pharmacist under chapter 18.64 RCW, whether acting in an individual capacity or as an employee or agent of any public or private organization or institution.

(9) "Abuse or neglect" or "patient abuse or neglect" means the nonaccidental physical injury or condition, sexual abuse, or negligent treatment of a nursing home or state hospital patient under circumstances which indicate that the patient's health, welfare, ((and)) or safety is harmed thereby.

(10) "Negligent treatment" means an act or omission which evinces a serious disregard of consequences of such magnitude as to constitute a clear and present danger to the patient's health, welfare, ((and)) or safety.

(11) "State hospital" means any hospital operated and maintained by the state for the care of the mentally ill under chapter 72.23 RCW.

Sec. 520. RCW 70.124.040 and 1981 c 174 s 4 are each amended to read as follows:

(1) Where a report is ((deemed warranted)) required under RCW 70.124.030, an immediate oral report shall be made by telephone or otherwise to either a law enforcement agency or to the department and, upon request, shall be followed by a report in writing. The reports shall contain the following information, if known:

(a) The name and address of the person making the report;

(b) The name and address of the nursing home or state hospital patient;

(d) The nature and extent of the injury or injuries;

(e) The nature and extent of the neglect;

(f) The nature and extent of the sexual abuse;

(g) Any evidence of previous injuries, including their nature and extent; and

(h) Any other information which may be helpful in establishing the cause of the patient's death, injury, or injuries, and the identity of the perpetrator or perpetrators.

(2) Each law enforcement agency receiving such a report shall, in addition to taking the action required by RCW 70.124.050, immediately relay the report to the department, and to other law enforcement agencies, including the medicaid fraud control unit of the office of the attorney general, as appropriate. For any report it receives, the department shall likewise take the required action and in addition relay the report to the appropriate law enforcement agency or agencies. The appropriate law enforcement agency or agencies shall receive immediate notification when the department, upon receipt of such report, has reasonable cause to believe that a criminal act has been committed.

Sec. 521. RCW 70.124.070 and 1979 ex.s. c 228 s 7 are each amended to read as follows:

A person who is required to make or to cause to be made a report pursuant to RCW 70.124.030 or 70.124.040 and who knowingly fails to make such report or fails to cause such report to be made is guilty of a gross misdemeanor.

NEW SECTION. Sec. 522. A new section is added to chapter 74.34 RCW to read as follows:

A person who is required to make or cause to be made a report under RCW 74.34.030 or 74.34.040 and who knowingly fails to make the report or fails to cause the report to be made is guilty of a gross misdemeanor.

Sec. 523. RCW 74.34.020 and 1995 1st sp.s. c 18 s 84 are each amended to read as follows:

Unless the context clearly requires otherwise, the definitions in this section apply throughout this chapter.

(1) "Abandonment" means action or inaction by a person or entity with a duty of care for a frail elder or a vulnerable adult that leaves the vulnerable person without the means or ability to obtain necessary food, clothing, shelter, or health care.

(2) "Abuse" means a nonaccidental act of physical or mental mistreatment or injury, or sexual mistreatment, which harms a person through action or inaction by another individual.

(3) "Consent" means express written consent granted after the person has been fully informed of the nature of the services to be offered and that the receipt of services is voluntary.

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

(5) "Exploitation" means the illegal or improper use of a frail elder or vulnerable adult or that person's income or resources, including trust funds, for another person's profit or advantage.

(6) "Neglect" means a pattern of conduct or inaction by a person or entity with a duty of care for a frail elder or vulnerable adult that results in the deprivation of care necessary to maintain the vulnerable person's physical or mental health.

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

(8) "Frail elder or vulnerable adult" means a person sixty years of age or older who has the functional, mental, or physical inability to care for himself or herself. "Frail elder or vulnerable adult" shall include persons found incapacitated under chapter 11.88 RCW, or a person who has a developmental disability under chapter 71A.10 RCW, and persons admitted to any long-term care facility that is licensed or required to be licensed under chapter 18.20, 18.51, 72.36, or 70.128 RCW, or persons receiving services from home health, hospice, or home care agencies licensed or required to be licensed under chapter 70.127 RCW.

(9) No frail elder or vulnerable person who relies upon and is being provided spiritual treatment in lieu of medical treatment in accordance with the tenets and practices of a well-recognized religious denomination shall for that reason alone be considered abandoned, abused, or neglected.

Sec. 524. RCW 43.43.832 and 1995 c 250 s 2 are each amended to read as follows:

(1) The legislature finds that businesses and organizations providing services to children, developmentally disabled persons, and vulnerable adults need adequate information to determine which employees or licensees to hire or engage. The legislature further finds that many developmentally disabled individuals and vulnerable adults desire to hire their own employees directly and also need adequate information to determine which employees or licensees to hire or engage. Therefore, the Washington state patrol criminal identification system ((may)) shall disclose, upon the request of a business or organization as defined in RCW 43.43.830, a developmentally disabled person, or a vulnerable adult as defined in RCW 43.43.830 or his or her guardian, an applicant's record for convictions of offenses against children or other persons, convictions for crimes relating to financial exploitation, but only if the victim was a vulnerable adult, adjudications of child abuse in a civil action, the issuance of a protection order against the respondent under chapter 74.34 RCW, and disciplinary board final decisions and any subsequent criminal charges associated with the conduct that is the subject of the disciplinary board final decision. When necessary, applicants may be employed on a conditional basis pending completion of such a background investigation.

(2) The legislature also finds that the state board of education may request of the Washington state patrol criminal identification system information regarding a certificate applicant's record for convictions under subsection (1) of this section.

(3) The legislature also finds that law enforcement agencies, the office of the attorney general, prosecuting authorities, and the department of social and health services may request this same information to aid in the investigation and prosecution of child, developmentally disabled person, and vulnerable adult abuse cases and to protect children and adults from further incidents of abuse.

(4) The legislature further finds that the department of social and health services, when considering persons for state positions directly responsible for the care, supervision, or treatment of children, developmentally disabled persons, or vulnerable adults or when licensing ((or)), authorizing, or contracting such services, persons, or agencies pursuant to its authority under chapter 74.15, 71A.10, 70.128, 18.51, 18.20, 18.48, 72.36, or 72.23 RCW, or persons receiving services from home health, hospice, or home care agencies licensed or required to be licensed under chapter 70.126 RCW, or any later-enacted statute which purpose is to license or regulate a facility which handles vulnerable adults, must consider the information listed in subsection (1) of this section. However, when necessary, persons may be employed on a conditional basis pending completion of the background investigation. Conditional employment or unsupervised volunteer work pending the completion of the criminal history background check shall only be authorized if the potential volunteer, employer, or employee verifies that the background application has been submitted to the appropriate agency and the applicant shows three positive work or personal references. The three references must be approved by the employer, kept by the agency or individual serving as employer, agent, supervisor, or department, as appropriate, and made available for the department to review. The approved three references shall serve only as a means for allowing temporary employment until an approved criminal history background check has been received. The approved three references do not take the place of a clear criminal history background check. The Washington personnel resources board shall adopt rules to accomplish the purposes of this subsection as it applies to state employees.

(5)(a) For purposes of facilitating timely access to criminal background information and to reasonably minimize the number of requests made under this section, recognizing that certain health care providers change employment frequently, health care facilities may, upon request from another health care facility, share copies of completed criminal background inquiry information.

(b) Completed criminal background inquiry information may be shared by a willing health care facility only if the following conditions are satisfied: The licensed health care facility sharing the criminal background inquiry information is reasonably known to be the person's most recent employer, no more than twelve months has elapsed from the date the person was last employed at a licensed health care facility to the date of their current employment application, and the criminal background information is no more than two years old.

(c) If criminal background inquiry information is shared, the health care facility employing the subject of the inquiry must require the applicant to sign a disclosure statement indicating that there has been no conviction or finding as described in RCW 43.43.842 since the completion date of the most recent criminal background inquiry.

(d) Any health care facility that knows or has reason to believe that an applicant has or may have a disqualifying conviction or finding as described in RCW 43.43.842, subsequent to the completion date of their most recent criminal background inquiry, shall be prohibited from relying on the applicant's previous employer's criminal background inquiry information. A new criminal background inquiry shall be requested pursuant to RCW 43.43.830 through 43.43.842.

(e) Health care facilities that share criminal background inquiry information shall be immune from any claim of defamation, invasion of privacy, negligence, or any other claim in connection with any dissemination of this information in accordance with this subsection.

(f) Health care facilities shall transmit and receive the criminal background inquiry information in a manner that reasonably protects the subject's rights to privacy and confidentiality.

(g) For the purposes of this subsection, "health care facility" means a nursing home licensed under chapter 18.51 RCW, a boarding home licensed under chapter 18.20 RCW, or an adult family home licensed under chapter 70.128 RCW.

Sec. 525. RCW 43.43.842 and 1992 c 104 s 1 are each amended to read as follows:

(1) The secretary of social and health services and the secretary of health shall adopt additional requirements for the licensure or relicensure of agencies providing services under chapter 74.39A RCW and nursing pools under chapter 18.52C RCW or facilities which provide care and treatment to vulnerable adults consistent with chapter 74.34 RCW. These additional requirements shall ensure that any person associated with a licensed agency or facility having direct contact with a vulnerable adult shall not have been: (a) Convicted of a crime against persons as defined in RCW 43.43.830, except as provided in this section; (b) convicted of crimes relating to financial exploitation as defined in RCW 43.43.830, except as provided in this section; (c) found in any disciplinary board final decision to have abused a vulnerable adult under RCW 43.43.830; or (d) the subject in a protective proceeding under chapter 74.34 RCW.

(b) The offense was prostitution, or the same offense as it may be renamed, and three or more years have passed between the most recent conviction and the date of application for employment;

(e) The offense was forgery, or the same offense as it may be renamed, and five or more years have passed between the most recent conviction and the date of application for employment.

In consultation with law enforcement personnel, the secretary of social and health services and the secretary of health shall investigate the conviction record and the protection proceeding record information under chapter 43.43 RCW of each agency providing services pursuant to chapters 74.39A and 18.52C RCW, or facility and its staff under their respective jurisdictions seeking licensure or relicensure. The secretaries shall use the information solely for the purpose of determining eligibility for licensure or relicensure. Criminal justice agencies shall provide the secretaries such information as they may have and that the secretaries may require for such purpose.

Sec. 526. RCW 43.20A.710 and 1993 c 210 s 1 are each amended to read as follows:

The secretary shall investigate the conviction records, pending charges or disciplinary board final decisions of: (1) Persons being considered for state employment in positions directly responsible for the supervision, care, or treatment of children or individuals with mental illness or developmental disabilities; and (2) individual providers who are paid by the state for in-home services and hired by individuals with physical disabilities, developmental disabilities, mental illness, or mental impairment. The investigation may include an examination of state and national criminal identification data and the child abuse and neglect register established under chapter 26.44 RCW. The secretary shall provide the results of the state background check on individual providers to the individuals with physical disabilities, developmental disabilities, mental illness, or mental impairment who hired them and to their legal guardians, if any. The secretary shall use the information solely for the purpose of determining the character, suitability, and competence of these applicants except that in the case of individuals with physical disabilities, developmental disabilities, mental illness, or mental impairment who employ individual providers, the determination of character, suitability, and competence of applicants ((shall)) may be made by the individual with a physical disability, developmental disability, mental illness, or mental impairment, and except that state payment for in-home services shall be denied if the in-home provider has a disqualifying criminal history background. Criminal justice agencies shall provide the secretary such information as they may have and that the secretary may require for such purpose. If necessary, persons may be employed on a conditional basis pending completion of the background investigation. Conditional employment or unsupervised volunteer work pending the completion of the criminal history background check shall only be authorized if the potential volunteer, employer, or employee verifies that the background application has been submitted to the appropriate agency and the applicant shows three positive work or personal references. The three references must be approved by the employer, kept by the individual receiving the services, and made available for the department to review. The approved three references shall serve only as a means for allowing temporary employment until an approved criminal history background check has been received. The approved three references do not take the place of a clear criminal history background check.

Sec. 527. RCW 18.52C.010 and 1988 c 243 s 1 are each amended to read as follows:

The legislature intends to protect the public's right to high quality health care by assuring that nursing pools employ, procure, or refer competent and qualified nursing personnel or long-term care personnel providing services pursuant to chapter 74.39A RCW, and that such nursing or long-term care personnel are provided to individuals, agencies, or health care facilities in a way to meet the needs of residents and patients.

Sec. 528. RCW 18.52C.020 and 1991 c 3 s 130 are each amended to read as follows:

Unless the context clearly requires otherwise, the definitions in this section apply throughout this chapter.

(1) "Secretary" means the secretary of the department of health.

(2) "Health care facility" means a nursing home, hospital, hospice care facility, home health care agency, hospice agency, boarding home, adult family home, group home, or other entity for the delivery of health care, or the delivery of long-term care services pursuant to chapter 74.39A RCW, including services provided under the state-funded individual provider program.

(3) "Nursing home" means any nursing home facility licensed pursuant to chapter 18.52 RCW.

(4) "Nursing pool" means any person engaged in the business of providing, procuring, or referring health care personnel for temporary employment in health care facilities, such as licensed nurses or practical nurses, and nursing assistants. "Nursing pool" does not include an individual who only engages in providing his or her own services.

(5) "Person" includes an individual, firm, corporation, partnership, or association.

Sec. 529. RCW 18.52C.040 and 1991 c 3 s 132 are each amended to read as follows:

(1) The nursing pool shall document that each temporary employee or referred independent contractor provided or referred to health care facilities currently meets the minimum state credentialing requirements.

(2) The nursing pool shall not require, as a condition of employment or referral, that employees or independent contractors of the nursing pool recruit new employees or independent contractors for the nursing pool from among the permanent employees of the health care facility to which the nursing pool employee or independent contractor has been assigned or referred.

(3) The nursing pool shall carry professional and general liability insurance to insure against any loss or damage occurring, whether professional or otherwise, as the result of the negligence of its employees, agents or independent contractors for acts committed in the course of their employment with the nursing pool: PROVIDED, That a nursing pool that only refers self-employed, independent contractors to health care facilities shall carry professional and general liability insurance to cover its own liability as a nursing pool which refers self-employed, independent contractors to health care facilities: AND PROVIDED FURTHER, That it shall require, as a condition of referral, that self-employed, independent contractors carry professional and general liability insurance to insure against loss or damage resulting from their own acts committed in the course of their own employment by a health care facility.

(4) The uniform disciplinary act, chapter 18.130 RCW, shall govern the issuance and denial of registration and the discipline of persons registered under this chapter. The secretary shall be the disciplinary authority under this chapter.

(5) All nursing pools shall require background checks under chapter 43.43 RCW for employees or independent contractors of the nursing pools and other individuals working with unsupervised access to vulnerable adults in compliance with the requirements of RCW 43.43.830 through 43.43.842.

NEW SECTION. Sec. 530. A new section is added to chapter 43.20A RCW to read as follows:

The secretary of social and health services shall adopt additional requirements for individuals who work independently, or with any agency or organization providing temporary assistance as a paid or voluntary employee, or through independent contractors, that brings them into unsupervised access with vulnerable adults receiving long-term care services or assistance under chapters 74.39A, 72.23, and 72.36 RCW.

NEW SECTION. Sec. 531. A new section is added to chapter 43.43 RCW to read as follows:

If information is released under this chapter by the state of Washington, the state and its employees: (1) Make no representation that the subject of the inquiry has no criminal record or adverse civil or administrative decisions; (2) make no determination that the subject of the inquiry is suitable for involvement with a business or organization; and (3) are not liable for defamation, invasion of privacy, negligence, or any other claim in connection with any lawful dissemination of information.

NEW SECTION. Sec. 532. The following acts or parts of acts are each repealed:

(1) RCW 74.39.030 and 1989 c 427 s 11;

(2) RCW 74.39.040 and 1989 c 427 s 13;

(3) RCW 74.39A.005 and 1993 c 508 s 1; and

(4) RCW 74.39A.008 and 1995 1st sp.s. c 18 s 1.

NEW SECTION. Sec. 533. Part headings and captions used in this act are not part of the law.

NEW SECTION. Sec. 534. Section 403 of this act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and takes effect immediately."

On page 1, line 2 of the title, after "act;" strike the remainder of the title and insert "amending RCW 70.129.010, 70.129.030, 70.129.110, 70.129.150, 74.39A.030, 74.39A.040, 74.39A.050, 74.39A.060, 70.129.105, 74.42.030, 74.42.450, 43.20B.080, 74.34.010, 74.39A.170, 70.128.175, 9A.42.010, 9A.42.050, 9A.42.020, 9A.42.030, 9A.44.010, 9A.44.050, 9A.44.100, 18.130.200, 43.43.842, 70.124.020, 70.124.040, 70.124.070, 74.34.020, 43.43.832, 43.43.842, 43.20A.710, 18.52C.010, 18.52C.020, and 18.52C.040; reenacting and amending RCW 18.130.040; adding a new section to chapter 74.39A RCW; adding a new section to chapter 70.124 RCW; adding new sections to chapter 74.34 RCW; adding new sections to chapter 18.20 RCW; adding a new section to chapter 43.20B RCW; adding a new section to chapter 43.70 RCW; adding a new section to chapter 18.51 RCW; adding new sections to chapter 9A.42 RCW; adding a new section to chapter 43.20A RCW; adding a new section to chapter 43.43 RCW; creating new sections; repealing RCW 74.39.030, 74.39.040, 74.39A.005, and 74.39A.008; and declaring an emergency.", and that the bill do pass as recommended by the Conference Committee.

Signed by Senators Deccio, Wojahn, Benton; Representatives Dyer, Backlund, Cody.

MOTION

On motion of Senator Deccio, the Report of the Conference Committee on Engrossed Second Substitute House Bill No. 1850 was not adopted.

MOTION

On motion of Senator Deccio, the Report of the Conference Committee on Engrossed Second Substitute House Bill No. 1850 was returned to the Conference Committee.

MESSAGE FROM THE HOUSE

April 23, 1997

MR. PRESIDENT:

The House insists on its position regarding the Senate amendment(s) to SECOND SUBSTITUTE HOUSE BILL NO. 2054 and asks the Senate for a conference thereon. The Speaker has appointed the following members as conferees: Representatives Chandler, Mastin and Linville.

TIMOTHY A. MARTIN, Chief Clerk

MOTION

On motion of Senator Johnson, the Senate refuses to grant the request of the House for a conference on Second Substitute House Bill No. 2054 and receded from the striking amendment by Senator Morton, as amended, April 18, 1997.

MOTIONS

On motion of Senator Johnson, the rules were suspended, Second Substitute House Bill No. 2054 was returned to second reading and read the second time.

Senator Morton moved that the following amendment be adopted:

Strike everything after the enacting clause and insert the following:

"PART I

BASIN PLANS

NEW SECTION. Sec. 101. The purpose of this chapter is to develop a more thorough and cooperative method of determining what the current water resource situation is in each water resource inventory area of the state and to provide local citizens with the maximum possible input concerning their goals and objectives for water resource management and development.

It is necessary for the legislature to establish processes and policies that will result in providing state agencies with more specific guidance to manage the water resources of the state consistent with current law and direction provided by local entities and citizens through the process established in accordance with this chapter.

NEW SECTION. Sec. 102. The legislature finds that the local development of watershed plans for managing water resources and for protecting existing water rights is vital to both state and local interests. The local development of these plans serves vital local interests by placing it in the hands of people: Who have the greatest knowledge of both the resources and the aspirations of those who live and work in the watershed; and who have the greatest stake in the proper, long-term management of the resources. The development of such plans serves the state's vital interests by ensuring that the state's water resources are used wisely, by protecting existing water rights, by protecting instream flows for fish, and by providing for the economic well-being of the state's citizenry and communities. Therefore, the legislature believes it necessary for units of local government throughout the state to engage in the orderly development of these watershed plans.

NEW SECTION. Sec. 103. Unless the context clearly requires otherwise, the definitions in this section apply throughout this chapter.

(1) "Department" means the department of ecology.

(2) "Implementing rules" for a WRIA plan are the rules needed to give force and effect to the parts of the plan that create rights or obligations for any party including a state agency or that establish water management policy.

(3) "Minimum instream flow" means a minimum flow under chapter 90.03 or 90.22 RCW or a base flow under chapter 90.54 RCW.

(4) "WRIA" means a water resource inventory area established in chapter 173-500 WAC as it existed on January 1, 1997.

(5) "Water supply utility" means a water, combined water-sewer, irrigation, reclamation, or public utility district that provides water to persons or other water users within the district or a division or unit responsible for administering a publicly governed water supply system on behalf of a county.

(6) "WRIA plan" or "plan" means the product of the planning unit including any rules adopted in conjunction with the product of the planning unit.

NEW SECTION. Sec. 104. In order to have the best possible program for appropriating and administering water use in the state, the legislature establishes the following principles and criteria to carry out the purpose and intent of chapter . . ., Laws of 1997 (this act).

(1) All WRIA planning units established under this chapter shall develop a process to assure that water resource user interests and directly involved interest groups at the local level have the opportunity, in a fair and equitable manner, to give input and direction to the process.

(2) If a planning unit requests technical assistance from a state agency as part of its planning activities under this chapter and the assistance is with regard to a subject matter over which the agency has jurisdiction, the state agency shall provide the technical assistance to the planning unit.

(3) Plans developed under chapter . . ., Laws of 1997 (this act) shall be consistent with and not duplicative of efforts already under way in a WRIA, including but not limited to watershed analysis conducted under state forest practices statutes and rules.

NEW SECTION. Sec. 105. (1) Once a WRIA planning unit has been organized and designated a lead agency, it shall notify the department and may apply to the department for funding assistance for conducting the planning. Funds shall be provided from and to the extent of appropriations made by the legislature to the department expressly for this purpose.

(2) Each planning unit that has complied with subsection (1) of this section is eligible to receive fifty thousand dollars for each WRIA to initiate the planning process. The department shall allocate additional funds to WRIA planning units based on need demonstrated by a detailed proposed budget submitted by the planning unit for carrying out the duties of the planning unit. Each WRIA planning unit may receive up to two hundred fifty thousand dollars for each WRIA during the first two-year period of planning, with a maximum allocation of five hundred thousand dollars for each WRIA. Funding provided under this section shall be considered a contractual obligation against the moneys appropriated for this purpose.

(3) Preference shall be given to planning units requesting funding for conducting multi-WRIA planning under section 108 of this act.

(4) The department may retain up to one percent of funds allocated under this section to defray administrative costs.

NEW SECTION. Sec. 106. (1) This chapter shall not be construed as creating a new cause of action against the state or any county, city, town, water supply utility, conservation district, or planning unit.

(2) Notwithstanding RCW 4.92.090, 4.96.010, and 64.40.020, no claim for damages may be filed against the state or any county, city, town, water supply utility, tribal governments, conservation district, or planning unit that or member of a planning unit who participates in a WRIA planning unit for performing responsibilities under this chapter.

NEW SECTION. Sec. 107. (1)(a) Except as provided in section 108 of this act for multi-WRIA planning, the county with the largest area within the boundaries of a WRIA, the city obtaining the largest amount of water from the WRIA, and the largest water supply utility in the WRIA may jointly and unanimously choose to initiate water resource planning for the WRIA under this chapter. If the initiating group so chooses, it shall make application to the department of ecology to declare its intent to conduct watershed planning. Upon making application to the department, the initiating group shall notify the counties, cities, water supply utilities, tribal governments, and conservation districts with territory within the WRIA that these groups are to meet to appoint their members of the WRIA planning unit. The initiating group may consult with the department regarding the initiation of watershed planning. For the purposes of this section and sections 108 and 112 of this act, a county is considered to have territory within a WRIA only if the territory of the county located in the WRIA constitutes at least fifteen percent of the area of the WRIA. For conducting planning under this chapter, the county with the largest area within the boundaries of the WRIA is the lead agency for the WRIA planning, except as provided in (b) and (c) of this subsection and section 108 of this act for multi-WRIA planning.

(b) When the counties of a WRIA have convened jointly to make appointments to the planning unit, they may, by a majority vote, choose as the lead agency for WRIA planning any governmental entity in the WRIA. Such a governmental entity shall act as the lead agency for this purpose if it agrees in writing to accept the designation.

(c) For a WRIA located within Pierce, King, Snohomish, or Spokane county, the lead agency shall be the water purveyor that is using the largest amount of water from the WRIA unless the water supply utility notifies in writing the county with the largest area in the WRIA that it chooses not to be the lead agency. Such notice shall be provided within ten working days.

(2) In a WRIA where water resource planning efforts have commenced before the effective date of this section, such as but not limited to the Kettle river WRIA, the county legislative authorities with territory within the WRIA in accordance with subsection (1) of this section may, by majority vote, choose to adopt the existing planning unit membership for purposes of planning under chapter . . ., Laws of 1997 (this act).

Nothing in chapter . . ., Laws of 1997 (this act) shall affect ongoing efforts to develop new resources and the sharing of existing resources. No moratorium may be imposed on water resource decision making by the department solely because of ongoing planning efforts or the absence of a plan or planning effort. Any new planning units formed under this act shall recognize efforts already in progress.

(3)(a) One WRIA planning unit shall be appointed for the WRIA as provided by this section or for a multi-WRIA area as provided by section 108 of this act for multi-WRIA planning. The planning unit shall be composed of:

(i) One member representing each county with territory in the WRIA appointed by the county;

(ii) One member representing cities for each county with territory in the WRIA appointed by the cities within that county;

(iii) One member representing water supply utilities for each county with territory within the WRIA, appointed jointly by the three largest water supply utilities in the county;

(iv) One member representing all conservation districts with territory within the WRIA appointed jointly by those districts;

(v) Three members representing various special interest groups appointed jointly by the cities with territory within the WRIA; and six members representing various special interest groups appointed jointly by the counties with territory within the WRIA;

(vi) One member representing the general citizenry appointed jointly by the cities with territory within the WRIA;

(vii) Three members representing the general citizenry appointed jointly by the counties with territory in the WRIA, of which at least one shall be a holder of a water right certificate and at least one shall be a holder of a water right for which a statement of claim was in the state's water rights claims registry before January 1, 1997;

(viii) If one or more federal Indian reservations are located in whole or in part within the boundaries of the WRIA, the planning unit shall extend an invitation to the tribal government of each reservation to appoint one member representing that tribal government; and

(ix) Three members representing state agencies including the secretary of the department of transportation or the secretary's designee, the director of the department of fish and wildlife or the director's designee, and the director of the department of ecology or the director's designee. The three members representing state government shall have a single vote representing state agency interests.

(b) In addition, for a WRIA located within Pierce, King, Snohomish, or Spokane county, one representative of the water purveyor using the largest amount of water from the WRIA shall be a voting member of the planning unit whether the principal offices of the purveyor are or are not located within the WRIA.

(4) Except for a person appointed under subsection (3)(a)(ix) or (b) of this section, each person appointed to a WRIA planning unit shall have been a resident and a property owner of the WRIA for at least three years. No state employees or state officials other than members appointed under subsection (3)(a)(ix) of this section may be appointed to the planning unit. In appointing persons to the WRIA planning unit representing special interest groups, the counties and cities shall consider industrial water users, general businesses, hydroelectric and thermal power producers, and irrigated agriculture, nonirrigated agriculture, forestry, recreation, environmental, and fisheries interest groups and other groups with interests in the WRIA.

(5)(a) In voting to appoint the members of a WRIA planning unit, to select a lead agency for water resource planning under section 107 or 108 of this act, to approve a WRIA plan under section 112 of this act, or to request or concur with a request for multi-WRIA planning under section 108 of this act, each county with territory within the WRIA shall have three votes, divided equally among the members of the county's legislative authority and these actions shall be made by majority vote based on the votes allocated under this section. In voting to appoint members of a WRIA planning unit: Each city with territory within the WRIA shall have one vote and appointments shall be made by majority vote of such cities; each water supply utility other than those of a city or town with territory within the WRIA shall have one vote and appointments shall be made by majority vote of such districts; and each conservation district with territory within the WRIA shall have one vote and appointments shall be made by majority vote of such districts. All appointments shall be made within sixty days of the date the appointing authorities other than the counties are notified to convene to make appointments or the appointments shall be made by the counties with territory in the WRIA in the same manner the counties make other appointments.

(b) The members appointed to the WRIA planning unit under subsection (3)(a)(i), (ii), and (iii) of this section may, within thirty days, by unanimous vote, increase the number of members of the planning unit appointed under subsection (3)(a)(v), (vi), and (vii) of this section by up to five members. Appointment of additional members to the planning unit shall be made within thirty days from the date of application to the department under subsection (1)(a) of this section.

(c) A vacancy on the planning unit shall be filled by appointment in the same manner prescribed for appointing the position that has become vacant. The planning unit shall convene and begin work as soon as two-thirds of the number of persons eligible to be members of the planning unit have been appointed. All positions must be filled within thirty days of the convening of the planning unit. The unit shall not interrupt its work to await additional original appointments or appointments to fill any vacancies that may occur in its membership.

NEW SECTION. Sec. 108. (1) The counties with territory in a WRIA, the city obtaining the largest quantity of water from the WRIA, and the largest water supply utility in the WRIA may jointly and unanimously elect to initiate multi-WRIA planning. If this initiating group so chooses, the initiating group shall notify the counties, cities, water supply utilities, tribal governments, and conservation districts with territory within the multi-WRIA area that these groups are to meet to appoint their members of the multi-WRIA area planning unit.

(a) The planning unit shall be composed of:

(i) One member representing each county with territory in the multi-WRIA area appointed by that county;

(ii) One member representing cities for each county with territory in the multi-WRIA area appointed by the cities within that county;

(iii) One member representing water supply utilities for each county with territory within the multi-WRIA area appointed jointly by the three water supply utilities in each county;

(iv) Up to two members, as that number is determined by the districts, representing all conservation districts with territory within the multi-WRIA area and appointed jointly by those districts;

(v) Three members representing various special interest groups appointed jointly by the cities with territory within the multi-WRIA area; and six members representing various special interest groups appointed jointly by the counties with territory within the multi-WRIA area;

(vi) One member representing the general citizenry appointed jointly by the cities with territory within the multi-WRIA area;

(vii) Three members representing the general citizenry appointed jointly by the counties with territory in the multi-WRIA area, of which at least one shall be a holder of a water right certificate and at least one shall be a holder of a water right for which a statement of claim was in the state's water rights claims registry before January 1, 1997;

(viii) If one or more federal Indian reservations are located in whole or in part within the boundaries of the multi-WRIA area, the planning unit shall extend an invitation to the tribal government of each reservation to appoint one member representing that tribal government; and

(b) In addition, for a multi-WRIA planning unit located within Pierce, King, Snohomish, or Spokane county, one representative of the water purveyor using the largest amount of water from the multi-WRIA area shall be a voting member of the planning unit whether the principal offices of the purveyor are or are not located within the multi-WRIA area.

(c) Except for a person appointed under (a)(ix) or (b) of this subsection, each person appointed to a multi-WRIA planning unit shall have been a resident and property owner within the multi-WRIA area for at least three years. No state employees or state officials other than members appointed under (a)(ix) of this subsection may be appointed to the planning unit. In appointing persons to the multi-WRIA planning unit representing special interest groups the counties and cities shall consider industrial water users, general businesses, hydroelectric and thermal power producers, and irrigated agriculture, nonirrigated agriculture, forestry, recreation, environmental, and fisheries interest groups and other groups with interests in the multi-WRIA area.

(2) In a multi-WRIA area where water resource planning efforts have commenced before the effective date of this section, such as but not limited to the Kettle river WRIA, the county legislative authorities with territory within the WRIA in accordance with subsection (1) of this section may, by majority vote, choose to adopt the existing planning unit membership for purposes of planning under chapter . . ., Laws of 1997 (this act).

Nothing in this act shall affect ongoing efforts to develop new resources and the sharing of existing resources. No moratorium may be imposed on water resource decision making by the department solely because of ongoing planning efforts or the absence of a plan or planning effort. Any new planning units formed under this act shall recognize efforts already in progress.

(3)(a) The counties in the multi-WRIA area shall select, by a majority vote, a governmental entity in the multi-WRIA area to act as lead agency for water resource planning in the multi-WRIA area under this chapter. Such an entity shall serve as the lead agency if it agrees in writing to do so. All appointments shall be made within sixty days of the date the lead agency in the multi-WRIA area notifies the other appointing authorities to convene to make appointments or the appointments shall be made by the counties with territory in the multi-WRIA area in the same manner the counties make other appointments.

(b) The members appointed to the WRIA planning unit under subsection (1)(a)(i), (ii), and (iii) of this section may, within thirty days, by unanimous vote, increase the number of members of the planning unit appointed under subsection (1)(a)(v), (vi), and (vii) of this section by up to five members. Appointment of additional members to the planning unit shall be made within thirty days from the date of application to the department to initiate planning.

(4) A planning unit for a multi-WRIA area shall perform all of the functions assigned by this chapter to a WRIA planning unit and is subject to all of the provisions of this chapter that apply to a WRIA planning unit.

NEW SECTION. Sec. 109. The lead agency shall provide staff support from resources provided for planning under chapter . . ., Laws of 1997 (this act) and from other sources, including but not limited to sources provided under section 113 of this act, for the work of the WRIA planning unit. Each WRIA planning unit may establish its own methods of operation that are consistent with this chapter and may establish methods for reviewing the operations of its lead agency. No planning unit appointed or selected under this chapter may possess or exercise the power of eminent domain. No planning unit appointed or selected under this chapter may take any action that affects in any manner a general adjudication proceeding for water rights, completed or ongoing. Each WRIA planning unit is encouraged to: Consider information and plans that may have been previously developed by other entities in establishing water resource management plans for the WRIA; consider existing data regarding water resources in the WRIA; and, for a WRIA that borders another state, cooperate with local government counterparts in the adjacent state regarding water resource planning. Water resource plans developed under this chapter for a WRIA may not interfere in any manner with a general adjudication of water rights, completed or ongoing. Such a WRIA plan may not in any manner impair or diminish with a water right that exists before the adoption of the plan by the department under section 112 of this act.

All meetings of a WRIA planning unit shall be conducted as public meetings as required for such meetings by the open public meetings act, chapter 42.30 RCW. Some time shall be set aside at the end of each meeting of a WRIA planning unit for public comments. Each planning unit shall establish procedures to be followed by the unit in making decisions. The objective to be sought by the planning unit in making decisions is to reach agreement among its members on the decisions. Decisions by a two-thirds majority vote may be used if the unit has found that attempts at achieving full agreement have not been successful.

No person who is a member of a WRIA planning unit may designate another to act on behalf of the person as a member or to attend as a member a meeting of the unit on behalf of the person. If a member of a WRIA planning unit is absent from more than five meetings of the WRIA planning unit that constitute twenty percent or more of the meetings that have been conducted by the planning unit while the person is a member of the unit and these absences have not been excused as provided by this section, the member's position on the WRIA planning unit is to be considered vacant. A person's absence from a meeting may be excused: By the chair of the planning unit if a written request to do so is received by the chair before the meeting from which the member is to be absent; or by a majority vote of the members of the planning unit at the meeting during which the member is absent.

NEW SECTION. Sec. 110. (1) Each WRIA planning unit shall develop a water resource plan. The plan must address the elements listed in subsection (2) of this section and may include other elements added by the planning unit. Once organized, the first task of the planning unit is to prioritize these elements regarding their importance in the WRIA and in developing a water resource plan for the WRIA. A plan shall not be developed such that its provisions (a) are in conflict with state statute or federal law; (b) impair or diminish in any manner a water right existing before its adoption; (c) are inconsistent with the construction, operation, or maintenance of a federal reclamation project; or (d) are inconsistent with an instream flow or condition established for hydroelectric power project licensed under the federal power act. No aspect of the plan may establish standards for water quality or regulate water quality in any manner whatsoever.

(2) The plan must include the following:

(a) An assessment of water supply and use in the WRIA, including:

(i) A quantitative estimation of the amount of surface and ground water present in the planning unit, using United States geological survey information and other existing sources of information;

(ii) A quantitative estimation using existing sources of information, of the amount of precipitation and surface and ground water available, using available technologies, collectively for both current and future water uses, including for instream purposes and for withdrawal or diversion;

(iii) A quantitative estimation using existing sources of information, of the amount of surface and ground water actually being used, and the months of peak and minimum use, both in-stream and by withdrawal, for agricultural, industrial, fisheries, recreational, environmental, municipal, and residential purposes, and including amounts claimed, permitted, or certificated for future municipal needs; and

(iv) A quantitative estimation of the amount of water, approximately, that is represented by amounts in claims in the water rights claims registry, in water use permits, in certificated rights, and in rules establishing instream flows;

(b) A quantitative description of future water-based instream and out-of-stream needs in the planning unit, based on projected population and agricultural and other economic growth. That is, an identification of the water needed collectively for use for agricultural, fisheries, recreational, environmental, industrial, municipal, and residential purposes. If a federal reclamation project is providing water for reclamation purposes within the WRIA or multi-WRIA area, federal reclamation water use requirements shall be those for project lands within the WRIA or multi-WRIA area;

(i) Except for the main stem of the Columbia river or the main stem of the Snake river, a planning unit may propose minimum instream flows or lake levels as part of its plan for other rivers and streams in its WRIA or multi-WRIA area.

(ii) The planning unit, by unanimous recorded vote of all voting members, may set specific minimum instream flows or lake levels, and such flows or levels shall be adopted by rule of the department.

(iii) If the planning unit is unable to approve specific minimum instream flows or levels unanimously, such flows or levels may be submitted as a recommended minimum instream flow or level in the WRIA plan for consideration by the department. Such recommendations must be approved by a two-thirds majority vote of the voting members of the planning unit.

(iv) Minimum instream flows or lake levels proposed under this subsection may not conflict with flow requirements or conditions in effect under a license issued under the federal power act.

(v) The planning unit may propose adjustments to minimum instream flows or lake levels that have been set by rule before the adoption of the planning unit's plan and will propose minimum instream flows or lake levels as part of the plan for the other rivers, streams, and lakes for which it determines the establishment of flows or levels to be appropriate in the WRIA, or in the multi-WRIA area for multi-WRIA planning under section 108 of this act.

(vi) The planning unit, by unanimous recorded vote of all voting members, may adjust established minimum instream flows or lake levels, and such flows or levels shall be adopted by rule of the department.

(vii) If the planning unit is unable to approve such adjustments unanimously, such flows or levels may be submitted as a recommended adjustment to established minimum instream flows or lake levels in the WRIA plan for consideration by the department. Such recommendations must be approved by a two-thirds majority vote of the voting members of the planning unit.

(viii) A minimum instream flow or lake level set for a body of water in a WRIA plan adopted by the department under section 112 of this act supersedes any minimum flow or level or base flow or any other such flow or level previously established for the body of water by the department;

(d) A quantitative description of the ground water and of the surface water available for further appropriation including water that may be obtained through reuse. As used in this subsection (2)(d), "available" means available on the date the plan takes effect as a rule under section 112 of this act;

(e) An identification of known areas that provide for the recharge of aquifers from the surface and areas where aquifers recharge surface bodies of water;

(f) Strategies for increasing water supplies in the WRIA, including:

(i) Water conservation and reuse measures; and

(ii) Storage enhancements, including modifications to existing reservoirs, new reservoirs, and underground storage. Any quantity of water made available under these strategies is a quantity that is in addition to the water declared available for appropriation under (d) of this subsection; and

(g) An identification of areas where voluntary water-related habitat improvement projects or voluntary transactions providing for the purchase of water-related habitat or water-related habitat easements would provide the greatest benefit to habitat in the WRIA, and a prioritization of the areas based on their potential for providing such benefits. The purpose of this element of the plan is to provide a means of coordinating nonregulatory, voluntary efforts for improving water-related habitat in the WRIA.

(3) Upon request the department shall assist the planning unit in drafting proposed implementing rules for the elements of the plan over which the department has authority. The draft rules shall accompany the plan as it is reviewed under the provisions of this chapter.

(4) A plan shall not be developed under this chapter to require directly or indirectly the implementation of laws, rules, or programs that are designed primarily to control water pollution or discharges of pollutants to water, to regulate effluent discharges or wastewater treatment systems or facilities, or to establish or require the achievement of water quality standards, including but not limited to chapter 90.48 RCW and rules adopted under chapter 90.48 RCW, the national pollutant discharge elimination system permit program, and the state waste discharge permit program.

NEW SECTION. Sec. 111. (1) Water resource management plans developed pursuant to the process in this chapter and subsequently adopted by the department under section 112 of this act are presumed valid. This presumption shall apply in any petition or action filed against a plan.

(2) Any action taken by a state agency regarding water resources within a WRIA for which a plan has been adopted under section 112 of this act and any planning conducted by a state agency regarding water resources within a WRIA for which a plan has been adopted under section 112 of this act shall be taken or conducted in a manner that is consistent with the plan. All actions and decisions of the department regarding water resources in the WRIA shall be consistent with and based upon such an adopted plan for the WRIA. Any other authority of the department exercised within the WRIA regarding water resources shall be exercised in a manner that is consistent with such an adopted plan.

NEW SECTION. Sec. 112. (1) Upon completing a proposed water resource plan for the WRIA, the WRIA planning unit shall publish notice of and conduct at least one public hearing in the WRIA on the proposed plan. The planning unit shall take care to provide notice of the hearing throughout the WRIA or multi-WRIA area. As a minimum, it shall publish a notice of the hearing in one or more newspapers of general circulation in the WRIA or multi-WRIA area. After considering the public comments presented at the hearing or hearings, the planning unit shall submit a copy of its proposed plan to the department and to the tribal council of each reservation with territory within the WRIA.

(2)(a) The department shall provide advice as to any specific subsections or sections of the plan that the department believes to be in conflict with state statute or federal law and may provide other recommendations regarding the plan. The department shall transmit its advice and recommendations regarding the plan to the WRIA planning unit within sixty days of receiving it for review.

(b) The tribal council may review and provide comments and recommendations to the planning unit within sixty days of the receipt of the plan.

(3) The WRIA planning unit shall consider each recommendation provided under subsection (2) of this section. The planning unit may adopt such a recommendation or provide changes to respond to the advice of the department and the tribal council by a two-thirds majority vote of the members of the planning unit.

The WRIA planning unit shall approve a water resource plan for the WRIA by a two-thirds majority vote of the members of the planning unit. An approved plan shall be submitted to the counties with territory within the WRIA for adoption. If a WRIA planning unit receives funding for WRIA or multi-WRIA planning under section 105 of this act and does not approve a plan for submission to the counties within four years of the date the planning unit receives the first of that funding from the department for the planning, the department shall develop and adopt a water resource plan for the WRIA or multi-WRIA area.

(4) The legislative authority of each of the counties with territory within the WRIA shall provide public notice for and conduct at least one public hearing on the WRIA plan submitted to the county under this section. The counties shall take care to provide notice of the hearings throughout the WRIA or multi-WRIA area. As a minimum, they shall publish a notice of the hearings in one or more newspapers of general circulation in the WRIA or multi-WRIA area. After the public hearings, the legislative authorities of these counties shall convene in joint session to consider the plan. The counties may approve or reject the plan, but may not amend the plan. Approval of a plan, or of recommendations for a plan that is not approved, shall be made by a majority vote of the members of the various legislative authorities of the counties with territory in the WRIA based on the votes allocated under section 107 of this act.

If the plan is not approved, it shall be returned to the WRIA planning unit with recommendations for revisions. Any revised plan and implementing rules prepared by the planning unit shall be submitted to the department and to the counties as provided by this section for WRIA water resource plans generally.

(5) If the plan and implementing rules are approved by the members of the legislative authorities, the plan shall be transmitted to the department for adoption. The department shall adopt such an approved WRIA water resource plan through the adopting of implementing rules. The department has no discretion to amend or reject the plan or implementing rules except those recommendations provided in section 110(2)(c) (iii) or (vii) of this act. A copy of the implementing rules and notice of its adoption as rules shall be published in the state register under chapter 34.05 RCW. The public hearing required by chapter 34.05 RCW shall be deemed to have been satisfied by public hearings held by county legislative authorities.

(6) If the department finds that an element of a WRIA plan is in conflict with state statute or federal law and the planning unit does not remove the conflict created by the element from its plan, the department and the planning unit shall submit the conflict to mediation. If mediation does not resolve the conflict within sixty days, the department shall file a petition for declaratory judgment in the superior court to determine whether the element is or is not in conflict with state statute or federal law. The petition shall be filed in the superior court in the county with the largest area in the WRIA or multi-WRIA area governed by the plan. The counties that approved the plan shall be named as parties to the proceeding. The superior court shall review the potential conflict under the error of law standard. If the superior court finds that an element of the plan is in conflict with state statute or federal law, that element of the plan shall be invalid. Decisions on such petitions are reviewable as in other civil cases. This subsection shall not be construed as establishing such state liability for any other element of the plan adopted as rules.

NEW SECTION. Sec. 113. The WRIA planning units may accept grants, funds, and other financing, as well as enter into cooperative agreements with private and public entities for planning assistance and funding.

NEW SECTION. Sec. 114. A new section is added to chapter 90.03 RCW to read as follows:

(1) The department shall rule in a timely manner upon complete applications to appropriate public surface and ground water. For complete applications that seek to appropriate water from within a WRIA for which a WRIA plan has been adopted, the department shall grant or deny the application within one hundred eighty days of the date the properly completed application is filed with the department, except as provided in subsection (2) of this section. For applications filed after July 1, 1999, that seek to appropriate water from within a WRIA for which no WRIA plan has been adopted, the department shall grant or deny the application within one year of the date the properly completed application is filed with the department, except as provided in subsection (2) of this section. The times allowed in this section to rule upon an application shall not include the time it takes the applicant to respond to an explicit request for additional information reasonably required to make a determination on the application. The department shall be allowed only one such request for additional information. The cost of obtaining such information shall be reasonable in relation to the quantity and value of the water right applied for. Once the applicant responds to an information request, the stay of the time allowed for the permit decision shall end.

(2) If a detailed statement, generally referred to as an environmental impact statement, must be prepared under chapter 43.21C RCW for or in regard to an application to appropriate water, the department shall grant or deny the application within ninety days of the date the final environmental impact statement is available from the official responsible for it under chapter 43.21C RCW.

(3) The department shall report by January 1, 1999, to the legislature on the status of processing applications under this section.

NEW SECTION. Sec. 115. A new section is added to chapter 34.05 RCW to read as follows:

(1) Once a plan has been adopted by the counties in the WRIA under section 112 of this act and the plan has been submitted to the department of ecology, the department shall file implementing rules for the plan with the code reviser along with an order adopting the implementing rules. The code reviser shall cause the order and the implementing rules to be published in the Washington state register in the manner provided for the adoption of final rules and shall incorporate the implementing rules into the Washington Administrative Code. No other aspect of this chapter that establishes procedures for the adoption of rules applies to the adoption of the plan by the department.

(2) For the purposes of this section, "WRIA" has the meaning established in section 103 of this act.

Sec. 116. RCW 90.54.040 and 1997 c ... s 2 (Senate Bill 5029) are each amended to read as follows:

(1) Consistent with chapter . . ., Laws of 1997 (this act) the department, through the adoption of appropriate rules, is directed, as a matter of high priority to insure that the waters of the state are utilized for the best interests of the people, to develop and implement in accordance with the policies of this chapter a comprehensive state water resources program which will provide a process for making decisions on future water resource allocation and use. The department may develop the program in segments so that immediate attention may be given to waters of a given physioeconomic region of the state or to specific critical problems of water allocation and use.

(2) In relation to the management and regulatory programs relating to water resources vested in it, the department is further directed to modify existing regulations and adopt new regulations, when needed and possible, to insure that existing regulatory programs are in accord with the water resource policy of this chapter and the program established in subsection (1) of this section.

(3) The department is directed to review all statutes relating to water resources which it is responsible for implementing. When any of the same appear to the department to be ambiguous, unclear, unworkable, unnecessary, or otherwise deficient, it shall make recommendations to the legislature including appropriate proposals for statutory modifications or additions. Whenever it appears that the policies of any such statutes are in conflict with the policies of this chapter, and the department is unable to fully perform as provided in subsection (2) of this section, the department is directed to submit statutory modifications to the legislature which, if enacted, would allow the department to carry out such statutes in harmony with this chapter.

PART II

STORAGE

Sec. 201. RCW 90.54.020 and 1989 c 348 s 1 are each amended to read as follows:

Utilization and management of the waters of the state shall be guided by the following general declaration of fundamentals:

(1) Uses of water for domestic, stock watering, industrial, commercial, agricultural, irrigation, hydroelectric power production, mining, fish and wildlife maintenance and enhancement, recreational, and thermal power production purposes, and preservation of environmental and aesthetic values, and all other uses compatible with the enjoyment of the public waters of the state, are declared to be beneficial.

(2) Allocation of waters among potential uses and users shall be based generally on the securing of the maximum net benefits for the people of the state. Maximum net benefits shall constitute total benefits less costs including opportunities lost.

(3) The quality of the natural environment shall be protected and, where possible, enhanced as follows:

(a) Perennial rivers and streams of the state shall be retained with base flows necessary to provide for preservation of wildlife, fish, scenic, aesthetic and other environmental values, and navigational values. Lakes and ponds shall be retained substantially in their natural condition. Withdrawals of water which would conflict therewith shall be authorized only in those situations where it is clear that overriding considerations of the public interest will be served.

(b) Waters of the state shall be of high quality. Regardless of the quality of the waters of the state, all wastes and other materials and substances proposed for entry into said waters shall be provided with all known, available, and reasonable methods of treatment prior to entry. Notwithstanding that standards of quality established for the waters of the state would not be violated, wastes and other materials and substances shall not be allowed to enter such waters which will reduce the existing quality thereof, except in those situations where it is clear that overriding considerations of the public interest will be served. Technology-based effluent limitations or standards for discharges for municipal water treatment plants located on the Chehalis, Columbia, Cowlitz, Lewis, or Skagit river shall be adjusted to reflect credit for substances removed from the plant intake water if:

(i) The municipality demonstrates that the intake water is drawn from the same body of water into which the discharge is made; and

(ii) The municipality demonstrates that no violation of receiving water quality standards or appreciable environmental degradation will result.

(4) The development of multipurpose water storage facilities shall be a high priority for programs of water allocation, planning, management, and efficiency. The department, other state agencies, local governments, and planning units formed under section 107 or 108 of this act shall evaluate the potential for the development of new storage projects and the benefits and effects of storage in reducing damage to stream banks and property, increasing the use of land, providing water for municipal, industrial, agricultural, power generation, and other beneficial uses, and improving stream flow regimes for fisheries and other instream uses.

(5) Adequate and safe supplies of water shall be preserved and protected in potable condition to satisfy human domestic needs.

(((5))) (6) Multiple-purpose impoundment structures are to be preferred over single-purpose structures. Due regard shall be given to means and methods for protection of fishery resources in the planning for and construction of water impoundment structures and other artificial obstructions.

(((6))) (7) Federal, state, and local governments, individuals, corporations, groups and other entities shall be encouraged to carry out practices of conservation as they relate to the use of the waters of the state. In addition to traditional development approaches, improved water use efficiency and conservation shall be emphasized in the management of the state's water resources and in some cases will be a potential new source of water with which to meet future needs throughout the state.

(((7))) (8) Development of water supply systems, whether publicly or privately owned, which provide water to the public generally in regional areas within the state shall be encouraged. Development of water supply systems for multiple domestic use which will not serve the public generally shall be discouraged where water supplies are available from water systems serving the public.

(((8))) (9) Full recognition shall be given in the administration of water allocation and use programs to the natural interrelationships of surface and ground waters.

(((9))) (10) Expressions of the public interest will be sought at all stages of water planning and allocation discussions.

(((10))) (11) Water management programs, including but not limited to, water quality, flood control, drainage, erosion control and storm runoff are deemed to be in the public interest.

Sec. 202. RCW 90.54.180 and 1989 c 348 s 5 are each amended to read as follows:

Consistent with the fundamentals of water resource policy set forth in this chapter, state and local governments, individuals, corporations, groups and other entities shall be encouraged to carry out water use efficiency and conservation programs and practices consistent with the following:

(1) Water efficiency and conservation programs should utilize an appropriate mix of economic incentives, cost share programs, regulatory programs, and technical and public information efforts. Programs which encourage voluntary participation are preferred.

(2) Increased water use efficiency should receive consideration as a potential source of water in state and local water resource planning processes. In determining the cost-effectiveness of alternative water sources, consideration should be given to the benefits of conservation, including waste water recycling, and ((impoundment)) storage of waters.

(3) In determining the cost-effectiveness of alternative water sources, full consideration should be given to the benefits of storage which can reduce the damage to stream banks and property, increase the utilization of land, provide water for municipal, industrial, agricultural, and other beneficial uses, provide for the generation of electric power from renewable resources, and improve stream flow regimes for fishery and other instream uses.

(4) Entities receiving state financial assistance for construction of water source expansion or acquisition of new sources shall develop, and implement if cost-effective, a water use efficiency and conservation element of a water supply plan pursuant to RCW 43.20.230(1).

(5) State programs to improve water use efficiency should focus on those areas of the state in which water is overappropriated; areas that experience diminished streamflows or aquifer levels; and areas where projected water needs, including those for instream flows, exceed available supplies.

(6) Existing and future generations of citizens of the state of Washington should be made aware of the importance of the state's water resources and the need for wise and efficient use and development of this vital resource. In order to increase this awareness, state agencies should integrate public education on increasing water use efficiency into existing public information efforts. This effort shall be coordinated with other levels of government, including local governments and Indian tribes.

PART III

GENERAL ADJUDICATIONS

NEW SECTION. Sec. 301. A new section is added to chapter 90.03 RCW to read as follows:

The legislature finds that the lack of certainty regarding water rights within a water resource basin may impede management and planning for water resources. The legislature further finds that planning units conducting water resource planning under chapter 90.-- RCW (sections 101 through 113 of this act) may find that the certainty provided by a general adjudication of water rights under this chapter is required for water planning or water management in a water resource inventory area or in a portion of the area. Therefore, such planning units may petition the department to conduct such a general adjudication and the department shall give high priority to such a request in initiating any such general adjudications under this chapter.

PART IV

WATER PURVEYORS

Sec. 401. RCW 90.03.383 and 1991 c 350 s 1 are each amended to read as follows:

(1) The legislature recognizes the value of interties for improving the reliability of public water systems, enhancing their management, and more efficiently utilizing the increasingly limited resource. Given the continued growth in the most populous areas of the state, the increased complexity of public water supply management, and the trend toward regional planning and regional solutions to resource issues, interconnections of public water systems through interties provide a valuable tool to ensure reliable public water supplies for the citizens of the state. Public water systems have been encouraged in the past to utilize interties to achieve public health and resource management objectives. The legislature finds that it is in the public interest to recognize interties existing and in use as of January 1, 1991, and to have associated water rights modified by the department of ecology to reflect current use of water through those interties, pursuant to subsection (3) of this section. The legislature further finds it in the public interest to develop a coordinated process to review proposals for interties commencing use after January 1, 1991.

(2) For the purposes of this section, the following definitions shall apply:

(a) "Interties" are interconnections between public water systems permitting exchange, acquisition, or delivery of wholesale and/or retail water between those systems for other than emergency supply purposes, where such exchange, acquisition, or delivery is within established instantaneous and annual withdrawal rates specified in the systems' existing water right permits or certificates, or contained in claims filed pursuant to chapter 90.14 RCW, and which results in better management of public water supply consistent with existing rights and obligations. Interties include interconnections between public water systems permitting exchange, acquisition, or delivery of water to serve as primary or secondary sources of supply((, but do not include development of new sources of supply to meet future demand)) and the development of new sources of supply to meet future demands if the water system or systems receiving water through such an intertie make efficient use of existing sources of water supply and the provision of water through such an intertie is consistent with local land use plans. For this purpose, a system's full compliance with the state department of health's conservation guidelines for such systems is deemed efficient use.

(b) "Service area" is the area designated as the wholesale and/or retail area in a water system plan or a coordinated water system plan pursuant to chapter 43.20 or 70.116 RCW respectively. When a public water system does not have a designated service area subject to the approval process of those chapters, the service area shall be the designated place of use contained in the water right permit or certificate, or contained in the claim filed pursuant to chapter 90.14 RCW.

(3)(a) Public water systems with interties existing and in use as of January 1, 1991, or that have received written approval from the department of health prior to that date, shall file written notice of those interties with the department of health and the department of ecology. The notice may be incorporated into the public water system's five-year update of its water system plan, but shall be filed no later than June 30, 1996. The notice shall identify the location of the intertie; the dates of its first use; the purpose, capacity, and current use; the intertie agreement of the parties and the service areas assigned; and other information reasonably necessary to modify the public water system's water right ((permit)). Notwithstanding the provisions of RCW 90.03.380 and 90.44.100, for public water systems with interties existing and in use or with written approval as of January 1, 1991, the department of ecology, upon receipt of notice meeting the requirements of this subsection, shall, as soon as practicable, modify the place of use descriptions in the water right permits, certificates, or claims to reflect the actual use through such interties, provided that the place of use is within service area designations established in a water system plan approved pursuant to chapter 43.20 RCW, or a coordinated water system plan approved pursuant to chapter 70.116 RCW, and further provided that the water used is within the instantaneous and annual withdrawal rates specified in the water rights ((permit)) and that no outstanding complaints of impairment to existing water rights have been filed with the department of ecology prior to September 1, 1991. Where such complaints of impairment have been received, the department of ecology shall make all reasonable efforts to resolve them in a timely manner through agreement of the parties or through available administrative remedies.

(b) An intertie meeting the requirements of this subsection (3) for modifying the place of use description in a water right permit, certificate, or claim may be used to its full design or built capacity within the most recently approved retail or wholesale or retail and wholesale service area, without further approval under this section and without regard to the capacity actually used before January 1, 1991.

(4) Notwithstanding the provisions of RCW 90.03.380 and 90.44.100, exchange, acquisition, or delivery of water through interties approved by the department of health commencing use after January 1, 1991, shall be permitted when the intertie improves overall system reliability, enhances the manageability of the systems, provides opportunities for conjunctive use, or delays or avoids the need to develop new water sources, and otherwise meets the requirements of this section, provided that each public water system's water use shall not exceed the instantaneous or annual withdrawal rate specified in its water right authorization, shall not adversely affect existing water rights, and shall not be inconsistent with state-approved plans such as water system plans or other plans which include specific proposals for construction of interties. Interties approved and commencing use after January 1, 1991, shall not be inconsistent with regional water resource plans developed pursuant to chapter 90.54 RCW or chapter 90.-- RCW (sections 101 through 113 of this act).

(5) For public water systems subject to the approval process of chapter 43.20 RCW or chapter 70.116 RCW, proposals for interties commencing use after January 1, 1991, shall be incorporated into water system plans pursuant to chapter 43.20 RCW or coordinated water system plans pursuant to chapter 70.116 RCW and submitted to the department of health and the department of ecology for review and approval as provided for in subsections (5) through (9) of this section. The plan shall state how the proposed intertie will improve overall system reliability, enhance the manageability of the systems, provide opportunities for conjunctive use, or delay or avoid the need to develop new water sources.

(6) The department of health shall be responsible for review and approval of proposals for new interties. In its review the department of health shall determine whether the intertie satisfies the criteria of subsection (4) of this section, with the exception of water rights considerations, which are the responsibility of the department of ecology, and shall determine whether the intertie is necessary to address emergent public health or safety concerns associated with public water supply.

(7) If the intertie is determined by the department of health to be necessary to address emergent public health or safety concerns associated with public water supply, the public water system shall amend its water system plan as required and shall file an application with the department of ecology to change its existing water right to reflect the proposed use of the water as described in the approved water system plan. The department of ecology shall process the application for change pursuant to RCW 90.03.380 or 90.44.100 as appropriate, except that, notwithstanding the requirements of those sections regarding notice and protest periods, applicants shall be required to publish notice one time, and the comment period shall be fifteen days from the date of publication of the notice. Within sixty days of receiving the application, the department of ecology shall issue findings and advise the department of health if existing water rights are determined to be adversely affected. If no determination is provided by the department of ecology within the sixty-day period, the department of health shall proceed as if existing rights are not adversely affected by the proposed intertie. The department of ecology may obtain an extension of the sixty-day period by submitting written notice to the department of health and to the applicant indicating a definite date by which its determination will be made. No additional extensions shall be granted, and in no event shall the total review period for the department of ecology exceed one hundred eighty days.

(8) If the department of health determines the proposed intertie appears to meet the requirements of subsection (4) of this section but is not necessary to address emergent public health or safety concerns associated with public water supply, the department of health shall instruct the applicant to submit to the department of ecology an application for change to the underlying water right or claim as necessary to reflect the new place of use. The department of ecology shall consider the applications pursuant to the provisions of RCW 90.03.380 and 90.44.100 as appropriate. The department of ecology shall not deny or limit a change of place of use for an intertie on the grounds that the holder of a permit has not yet put all of the water authorized in the permit to beneficial use. If in its review of proposed interties and associated water rights the department of ecology determines that additional information is required to act on the application, the department may request applicants to provide information necessary for its decision, consistent with agency rules and written guidelines. Parties disagreeing with the decision of the department of ecology ((on)) to approve or deny the application for change in place of use may appeal the decision to the pollution control hearings board.

(9) The department of health may approve plans containing intertie proposals prior to the department of ecology's decision on the water right application for change in place of use. However, notwithstanding such approval, construction work on the intertie shall not begin until the department of ecology issues the appropriate water right document to the applicant consistent with the approved plan.

(10) The 1997 amendments to this section in this act are null and void if any one of sections 101 through 115 of this act is vetoed by June 30, 1997.

Sec. 402. RCW 90.03.330 and 1987 c 109 s 89 are each amended to read as follows:

(1) Upon a showing satisfactory to the department that any appropriation has been perfected in accordance with the provisions of this chapter, it shall be the duty of the department to issue to the applicant a certificate stating such facts in a form to be prescribed by him, and such certificate shall thereupon be recorded with the department. Any original water right certificate issued, as provided by this chapter, shall be recorded with the department and thereafter, at the expense of the party receiving the same, be by the department transmitted to the county auditor of the county or counties where the distributing system or any part thereof is located, and be recorded in the office of such county auditor, and thereafter be transmitted to the owner thereof.

(2) If a public water system is providing water for municipal supply purposes under a certificated water right, the instantaneous and annual withdrawal rates specified in the certificate are deemed valid and perfected.

(3) If a federal reclamation project is providing water for reclamation purposes under a certificated water right, the instantaneous and annual withdrawal rates specified in the certificate are deemed valid and perfected.

(4) If an irrigation district is providing water for the purposes authorized by chapter 87.03 RCW under a certificated water right, the instantaneous and annual withdrawal rates specified in the certificate are deemed valid and perfected.

(5) The 1997 amendments to this section in this act are null and void if any one of sections 101 through 115 of this act is vetoed by June 30, 1997.

PART V

RELINQUISHMENT

Sec. 501. RCW 90.14.140 and 1987 c 125 s 1 are each amended to read as follows:

(1) For the purposes of RCW 90.14.130 through 90.14.180, "sufficient cause" shall be defined as the nonuse of all or a portion of the water by the owner of a water right for a period of five or more consecutive years where such nonuse occurs as a result of:

(a) Drought, or other unavailability of water;

(b) Active service in the armed forces of the United States during military crisis;

(d) The operation of legal proceedings;

(e) Federal laws imposing land or water use restrictions either directly or through the voluntary enrollment of a landowner in a federal program implementing those laws, or acreage limitations, or production quotas;

(f) An elapse of time occurring while a request or application is processed for transferring or changing a water right to use by a public water supplier for municipal purposes;

(g) The implementation of practices or technologies or the installation or repair of facilities, including but not limited to water conveyance practices, technologies, or facilities, that are more efficient or more water use efficient than practices, technologies, or facilities previously used under the water right.

(2) Notwithstanding any other provisions of RCW 90.14.130 through 90.14.180, there shall be no relinquishment of any water right:

(a) If such right is claimed for power development purposes under chapter 90.16 RCW and annual license fees are paid in accordance with chapter 90.16 RCW, or

(b) If such right is used for a standby or reserve water supply to be used in time of drought or other low flow period so long as withdrawal or diversion facilities are maintained in good operating condition for the use of such reserve or standby water supply, or

(c) If such right is claimed for a determined future development to take place ((either)) at any time within fifteen years of either July 1, 1967, or the most recent beneficial use of the water right, whichever date is later, or

(d) If such right is claimed for municipal water supply purposes under chapter 90.03 RCW, or

(e) If such waters are not subject to appropriation under the applicable provisions of RCW 90.40.030 as now or hereafter amended.

PART VI

GENERAL PERMITS

NEW SECTION. Sec. 601. The legislature finds that the present delay in the processing of water right applications is not beneficial to the citizens of the state nor is it in keeping with the goal of managing the resource to the highest possible standard and maximum net benefit.

The legislature further finds that water conservation efforts would be greatly enhanced by a permit system that encourages water right applicants to use only the amount of water actually necessary to meet their needs.

NEW SECTION. Sec. 602. A new section is added to chapter 90.03 RCW to read as follows:

(1) The department shall develop a general permit system for appropriating water for nonconsumptive, nonbypass uses. This system must be designed and used to accurately identify and register any water right application that qualifies for the streamlined process of appropriation of water by meeting the requirements in this section and registering the use. The general permit system must be applicable state-wide, and all waters of the state shall be eligible for coverage under the system. The evaluation and report required for an application under RCW 90.03.290 are not required for applications processed under the general permit system. For the purposes of this section:

(a) "Nonconsumptive, nonbypass use" means a use of water in which water is diverted from a stream or drawn from an aquifer and following its use is discharged back into or near the point of diversion or withdrawal without diminishment in quality and less than five thousand gallons of net consumption per day; and

(b) "Without diminishment of quality" means that, before being discharged back to its source, the water being discharged meets state water quality standards adopted under chapter 90.48 RCW.

(2) The department shall, by January 1, 1998, establish the general permit system by adopting rules in accordance with chapter 34.05 RCW. Before the adoption of rules for a system, the department shall consult with representatives of the following interest groups: Agriculture; aquaculture; home construction and development; county government; city government; surface mining; and the environmental community. At least four public hearings must be held at various locations around the state, not less than two of which shall be east of the crest of the Cascade mountains. The rules must identify criteria for proposed uses of water for which applications might be processed under the system and must establish procedures for filing and processing applications and issuing water rights certificates under the general permit system.

NEW SECTION. Sec. 603. A new section is added to chapter 90.03 RCW to read as follows:

An application for registration as a nonconsumptive, nonbypass water user under the general permit system established under section 602 of this act must be made on a form adopted and provided by the department. Within sixty days of receipt of a properly completed application, the department shall determine whether the proposed use is eligible to be processed under the general permit system. If the department determines that the proposed use is eligible to be processed under the system, the application must be processed under the system within the next sixty days. The priority date of the water right established pursuant to this section shall be the date that the properly completed application is submitted. If the department determines that the proposed use is not eligible for the processing, the department shall explain to the applicant in writing the reasons for its determination. For a proposed use determined ineligible for the processing, if the department finds that the information contained on the application form substantially satisfies the information requirements for an application for a use that would normally be filed for processing the application outside of the general permit system, the department shall notify the applicant of its finding and shall process the application as if it were filed for processing outside of the system. If the department finds that the information does not substantially satisfy the requirements, the application must be considered to be incomplete for the processing and the applicant must be notified of this consideration.

NEW SECTION. Sec. 604. A new section is added to chapter 90.03 RCW to read as follows:

Nothing in sections 602 and 603 of this act authorizes the impairment or operates to impair any existing water rights. A water right holder under sections 602 and 603 of this act shall not make withdrawals that impair a senior water right. A holder of a senior water right who believes his or her water right is impaired may file a complaint with the department of ecology. Where such complaints of impairment have been received, the department of ecology shall make all reasonable efforts to resolve them in a timely manner through agreement of the parties. Nothing in section 602 or 603 of this act may be construed as waiving any requirement established under chapter 90.48 RCW or federal law that a permittee secure a discharge permit regarding water quality.

NEW SECTION. Sec. 605. If specific funding for the purposes of this act, referencing this act by bill or chapter number, is not provided by June 30, 1997, in the omnibus appropriations act, this act is null and void.

PART VII

APPEALS

NEW SECTION. Sec. 701. The legislature recognizes that in many cases the value of real property directly depends upon the amount of water that is available for use on that property. The legislature also recognizes that water rights are a type of property right in which many different parties may assert an interest. Current statutes require many property rights actions in which different parties assert interests, such as actions for partition or eminent domain, to be filed in superior court. The legislature further finds that informal procedures such as mediation and fact finding have been employed successfully in other areas of the law, and may produce positive results in certain types of water disputes. The legislature therefore finds that property owners should have a choice to select informal or formal hearings before the pollution control hearings board, and that relinquishment proceedings should be appealed to the local superior courts.

Sec. 702. RCW 34.05.514 and 1995 c 347 s 113 and 1995 c 292 s 9 are each reenacted and amended to read as follows:

(1) Except as provided in subsections (2) and (3) of this section, proceedings for review under this chapter shall be instituted by paying the fee required under RCW 36.18.020 and filing a petition in the superior court, at the petitioner's option, for (a) Thurston county, (b) the county of the petitioner's residence or principal place of business, or (c) in any county where the property owned by the petitioner and affected by the contested decision is located.

(2) For proceedings involving institutions of higher education, the petition shall be filed either in the county in which the principal office of the institution involved is located or in the county of a branch campus if the action involves such branch.

(3) For proceedings involving the relinquishment of a water right and appeals of formal and informal hearings of the pollution control hearings board involving a water quantity decision as defined in section 713 of this act, the petition shall be filed in the superior court for the county in which is located the land upon which the water was used.

Sec. 703. RCW 43.21B.110 and 1993 c 387 s 22 are each amended to read as follows:

(1) The pollution control hearings board shall only have jurisdiction to hear and decide appeals from the following decisions of the department, the director, the administrator of the office of marine safety, and the air pollution control boards or authorities as established pursuant to chapter 70.94 RCW, or local health departments:

(a) Civil penalties imposed pursuant to RCW 18.104.155, 70.94.431, 70.105.080, 70.107.050, 88.46.090, 90.03.600, 90.48.144, 90.56.310, and 90.56.330.

(b) Orders issued pursuant to RCW 18.104.043, 18.104.060, 43.27A.190, 70.94.211, 70.94.332, 70.105.095, 86.16.020, 88.46.070, ((90.14.130,)) and 90.48.120.

(c) The issuance, modification, or termination of any permit, certificate, or license by the department or any air authority in the exercise of its jurisdiction, including the issuance or termination of a waste disposal permit, the denial of an application for a waste disposal permit, or the modification of the conditions or the terms of a waste disposal permit.

(d) Decisions of local health departments regarding the grant or denial of solid waste permits pursuant to chapter 70.95 RCW.

(e) Decisions of local health departments regarding the issuance and enforcement of permits to use or dispose of biosolids under RCW 70.95J.080.

(f) Any other decision by the department, the administrator of the office of marine safety, or an air authority which pursuant to law must be decided as an adjudicative proceeding under chapter 34.05 RCW.

(2) The jurisdiction of the pollution control hearings board is further limited as follows:

(a) The hearings board has no jurisdiction to review orders pertaining to the relinquishment of a water right under RCW 90.14.130, or to review proceedings regarding general adjudications of water rights conducted pursuant to chapter 90.03 or 90.44 RCW.

(b) The following hearings shall not be conducted by the hearings board:

(((a))) (i) Hearings required by law to be conducted by the shorelines hearings board pursuant to chapter 90.58 RCW.

(((b))) (ii) Hearings conducted by the department pursuant to RCW 70.94.332, 70.94.390, 70.94.395, 70.94.400, 70.94.405, 70.94.410, and 90.44.180.

(((c) Proceedings by the department relating to general adjudications of water rights pursuant to chapter 90.03 or 90.44 RCW.

(d))) (iii) Hearings conducted by the department to adopt, modify, or repeal rules.

(3) ((Review of)) Rules and regulations adopted by the hearings board shall be subject to review in accordance with the provisions of the Administrative Procedure Act, chapter 34.05 RCW.

Sec. 704. RCW 43.21B.130 and 1990 c 65 s 3 are each amended to read as follows:

The administrative procedure act, chapter 34.05 RCW, shall apply to the appeal of rules and regulations adopted by the board to the same extent as it applied to the review of rules and regulations adopted by the directors and/or boards or commissions of the various departments whose powers, duties and functions were transferred by section 6, chapter 62, Laws of 1970 ex. sess. to the department. ((All other decisions and orders of the director and all decisions of air pollution control boards or authorities established pursuant to chapter 70.94 RCW shall be subject to review by the hearings board as provided in this chapter.))

Sec. 705. RCW 43.21B.240 and 1989 c 175 s 105 are each amended to read as follows:

The department and air authorities shall not have authority to hold adjudicative proceedings pursuant to the Administrative Procedure Act, chapter 34.05 RCW. Such hearings, except for appeals of orders pertaining to the relinquishment of a water right issued pursuant to RCW 90.14.130, shall be held by the pollution control hearings board.

Sec. 706. RCW 43.21B.305 and 1994 c 253 s 5 are each amended to read as follows:

In an appeal that involves a penalty of five thousand dollars or less, the appeal may be heard by one member of the board, whose decision shall be the final decision of the board. An informal hearing appeal relating to a water quantity decision as defined in section 713 of this act may be heard by one member of the board. The board shall define by rule alternative procedures to expedite small appeals. These alternatives may include: Mediation, upon agreement of all parties unless initiated as provided in section 713 of this act; submission of testimony by affidavit; conducting hearing by telephone; or other forms that may lead to less formal and faster resolution of appeals.

Sec. 707. RCW 43.21B.310 and 1992 c 73 s 3 are each amended to read as follows:

(1) Except as provided in subsection (2) of this section, any order issued by the department((, the administrator of the office of marine safety,)) or authority pursuant to RCW 70.94.211, 70.94.332, 70.105.095, 43.27A.190, 86.16.020, 88.46.070, or 90.48.120(2) or any provision enacted after July 26, 1987, or any permit, certificate, or license issued by the department may be appealed to the pollution control hearings board if the appeal is filed with the board and served on the department or authority within thirty days after receipt of the order. Except as provided under chapter 70.105D RCW, ((this is)) these are the exclusive means of appeal of such an order.

(((2))) (a) The department, the administrator, or the authority in its discretion may stay the effectiveness of an order during the pendency of such an appeal.

(((3))) (b) At any time during the pendency of an appeal of such an order to the board, the appellant may apply pursuant to RCW 43.21B.320 to the hearings board for a stay of the order or for the removal thereof.

(((4))) (c) Any appeal before the hearings board must contain the following in accordance with the rules of the hearings board:

(((a))) (i) The appellant's name and address;

(((b))) (ii) The date and docket number of the order, permit, or license appealed;

(((c))) (iii) A description of the substance of the order, permit, or license that is the subject of the appeal;

(((d))) (iv) A clear, separate, and concise statement of every error alleged to have been committed;

(((e))) (v) A clear and concise statement of facts upon which the requester relies to sustain his or her statements of error; and

(((f))) (vi) A statement setting forth the relief sought.

(((5))) (d) Upon failure to comply with any final order of the department or the administrator, the attorney general, on request of the department or the administrator, may bring an action in the superior court of the county where the violation occurred or the potential violation is about to occur to obtain such relief as necessary, including injunctive relief, to insure compliance with the order. The air authorities may bring similar actions to enforce their orders.

(((6))) (e) An appealable decision or order shall be identified as such and shall contain a conspicuous notice to the recipient that it may be appealed only by filing an appeal with the hearings board and serving it on the department within thirty days of receipt.

(2) Water quantity decisions of the department, as defined in section 713 of this act, may be appealed to the pollution control hearings board as provided in section 713 of this act. Appeals of orders pertaining to the relinquishment of a water right are filed in superior court provided by RCW 90.14.130.

Sec. 708. RCW 43.27A.190 and 1987 c 109 s 11 are each amended to read as follows:

Notwithstanding and in addition to any other powers granted to the department of ecology, whenever it appears to the department that a person is violating or is about to violate any of the provisions of the following:

(1) Chapter 90.03 RCW; or

(2) Chapter 90.44 RCW; or

(3) Chapter 86.16 RCW; or

(4) Chapter 43.37 RCW; or

(5) Chapter 43.27A RCW; or

(6) Any other law relating to water resources administered by the department; or

(7) A rule or regulation adopted, or a directive or order issued by the department relating to subsections (1) through (6) of this section; the department may cause a written regulatory order to be served upon ((said)) the person either personally, or by registered or certified mail delivered to addressee only with return receipt requested and acknowledged by him or her. The order shall specify the provision of the statute, rule, regulation, directive or order alleged to be or about to be violated, and the facts upon which the conclusion of violating or potential violation is based, and shall order the act constituting the violation or the potential violation to cease and desist or, in appropriate cases, shall order necessary corrective action to be taken with regard to such acts within a specific and reasonable time. The regulation of a headgate or controlling works as provided in RCW 90.03.070, by a watermaster, stream patrolman, or other person so authorized by the department shall constitute a regulatory order within the meaning of this section. A regulatory order issued hereunder shall become effective immediately upon receipt by the person to whom the order is directed, except for regulations under RCW 90.03.070 which shall become effective when a written notice is attached as provided therein. Any person aggrieved by such order may appeal the order pursuant to RCW 43.21B.310, except that appeals of orders pertaining to the relinquishment of a water right shall be filed in superior ourt pursuant to RCW 90.14.130.

Sec. 709. RCW 90.14.130 and 1987 c 109 s 13 are each amended to read as follows:

When it appears to the department of ecology that a person entitled to the use of water has not beneficially used his or her water right or some portion thereof, and it appears that ((said)) the person's right has or may have reverted to the state because of such nonuse, as provided by RCW 90.14.160, 90.14.170, or 90.14.180, the department of ecology shall notify such person by order: PROVIDED, That where a company, association, district, or the United States has filed a blanket claim under the provisions of RCW 90.14.060 for the total benefits of those served by it, the notice shall be served on such company, association, district or the United States and not upon any of its individual water users who may not have used the water or some portion thereof which they were entitled to use. The order shall contain: (1) A description of the water right, including the approximate location of the point of diversion, the general description of the lands or places where such waters were used, the water source, the amount involved, the purpose of use, and the apparent authority upon which the right is based; (2) a statement that unless sufficient cause be shown on appeal the water right will be declared relinquished; and (3) a statement that such order may be appealed to the ((pollution control hearings board)) superior court. Any person aggrieved by such an order may appeal it to the ((pollution control hearings board pursuant to RCW 43.21B.310)) superior court for the county in which is located the land upon which the water was used. Any such appeal to superior court shall be heard de novo. The order shall be served by registered or certified mail to the last known address of the person and be posted at the point of division or withdrawal. The order by itself hall not alter the recipient's right to use water, if any.

Sec. 710. RCW 90.14.190 and 1987 c 109 s 14 are each amended to read as follows:

Any person feeling aggrieved by any decision of the department of ecology may have the same reviewed pursuant to RCW 43.21B.310. However, any order pertaining to the relinquishment of a water right shall be filed in superior court pursuant to RCW 90.14.130. In any such review, the findings of fact as set forth in the report of the department of ecology shall be prima facie evidence of the fact of any waiver or relinquishment of a water right or portion thereof. If the hearings board affirms the decision of the department, a party seeks review in superior court of that hearings board decision pursuant to chapter 34.05 RCW, and the court determines that the party was injured by an arbitrary, capricious, or erroneous order of the department, the court may award reasonable attorneys' fees.

Sec. 711. RCW 90.14.200 and 1989 c 175 s 180 are each amended to read as follows:

(1) All matters relating to the implementation and enforcement of this chapter by the department of ecology shall be carried out in accordance with chapter 34.05 RCW, the Administrative Procedure Act, except where the provisions of this chapter expressly conflict with chapter 34.05 RCW. Proceedings held pursuant to RCW 90.14.130 are ((adjudicative proceedings within the meaning of chapter 34.05 RCW. Final decisions of the department of ecology in these proceedings)) appealable to superior court as provided in that section. Other final decisions of the department of ecology under this chapter are subject to review by the pollution control hearings board in accordance with chapter 43.21B RCW.

(2) RCW 90.14.130 provides nonexclusive procedures for determining a relinquishment of water rights under RCW 90.14.160, 90.14.170, and 90.14.180. RCW 90.14.160, 90.14.170, and 90.14.180 may be applied in, among other proceedings, general adjudication proceedings initiated under RCW 90.03.110 or 90.44.220: PROVIDED, That nothing herein shall apply to litigation involving determinations of the department of ecology under RCW 90.03.290 relating to the impairment of existing rights.

Sec. 712. RCW 90.66.080 and 1979 c 3 s 8 are each amended to read as follows:

The department is hereby empowered to promulgate such rules as may be necessary to carry out the provisions of this chapter. Decisions of the department, other than rule making, shall be subject to review by the pollution control hearings board or a superior court in accordance with chapter 43.21B RCW.

NEW SECTION. Sec. 713. A new section is added to chapter 43.21B RCW to read as follows:

(1) A water right claimant, or permit or certificate holder or applicant who is aggrieved or adversely affected by a water quantity decision may appeal the decision to the pollution control hearings board pursuant to RCW 43.21B.310. A formal hearing before the board may only be granted if all parties to the appeal of the water quantity decision agree to a formal hearing.

(2) At the request of any party, the board shall conduct an informal hearing, consisting of mediation and, if a settlement cannot be agreed upon, fact finding with recommendations. The hearings board shall adopt rules governing the election, practice, and procedures of informal hearings consistent with this section and section 714 of this act.

(3) For purposes of this chapter, a "water quantity decision" includes the following:

(a) A decision to grant or deny a permit or certificate for a right to the beneficial use of water or to amend, change, or transfer such a right; and

(b) A decision to enforce the conditions of a permit for, or right to, the beneficial use of water or to require any person to discontinue the use of water.

NEW SECTION. Sec. 714. A new section is added to chapter 43.21B RCW to read as follows:

(1) When one of the parties elects an informal hearing pursuant to section 713 of this act, a board member or an administrative law judge from the environmental hearings office shall be assigned as the mediator for the appeal.

(2) The parties involved in the informal hearing must provide the mediator and the other parties in advance with a clear, concise statement of the disputed issues and the parties' position in relation to the issues and supporting documentation. The mediator shall meet with the parties either jointly or separately, in the general area of the project under review or by telephone, at the discretion of the mediator, and shall take such steps as the mediator deems appropriate to resolve their differences and reach a settlement agreement. If a settlement agreement is reached, the mediator shall prepare and submit to the hearings board a written order of dismissal to which the settlement agreement is attached. The hearings board shall enter the order and dismiss the case unless the hearings board finds that the settlement agreement is contrary to law.

If the hearings board finds that the settlement agreement is contrary to law, it shall notify the parties and refer the dispute back to mediation.

(3) If the parties are unable to achieve a settlement agreement within ninety days after being appointed, the mediator shall issue a statement that a settlement agreement has not been reached. After issuance of the statement, the party filing the appeal may request the hearings board to submit the dispute to fact finding with recommendations. Notice of the request for fact finding must be sent to the other parties.

(4) Within five days of the receipt of the request for fact finding, the hearings board shall assign a board member or an administrative appeals judge from the environmental hearings office to serve as fact finder. The person who served as the mediator to the dispute may serve as the fact finder with the consent of both parties.

(5) Within five days of being appointed, the fact finder shall establish a date, time, and place for the fact-finding hearing. The date of the hearing must be within thirty days of the appointment of the fact finder. The hearing shall be conducted in the general area where the project under review is located. At least seven days before the date of the hearing, each party must submit to the fact finder and to the other parties written proposals on all of the issues it intends to submit to fact finding. The fact finder has the power to issue subpoenas requiring the attendance and production of witnesses and the production of evidence. The order of presentation at the hearing shall be as agreed by the parties or as determined by the fact finder. Each documentary exhibit shall be filed with the fact finder and copies shall be provided to the other parties. The fact finder shall declare the hearing closed after the parties have completed presenting their testimony within agreed time limits.

(6) The fact finder shall, within thirty days following the conclusion of the hearing, make written findings of fact and written recommendations to the parties as to how the dispute should be resolved. The fact finder may not apply any presumption as part of the findings of fact or recommendations. A copy of the findings and recommendations shall be filed with the hearings board. The findings of fact and recommendations of the fact finder are advisory only, and are not subject to review by the hearings board.

(7) The time limits established in this section may be extended by mutual agreement of all the parties.

NEW SECTION. Sec. 715. A new section is added to chapter 43.21B RCW to read as follows:

(1) Within thirty days after the fact finder has filed the findings of fact and recommendations pursuant to section 714 of this act, a party may request a formal hearing by the hearings board or appeal the water quantity decision directly to superior court. All parties must agree to a formal hearing by the hearings board before a formal hearing is granted.

(2) If a party elects to file an action in superior court following an informal hearing, it must be filed in the county in which is located the land upon which the water is or would be used.

NEW SECTION. Sec. 716. A new section is added to chapter 43.21B RCW to read as follows:

An appeal to superior court of a water quantity decision, as defined in section 713 of this act, following an informal hearing by the board shall be heard de novo. If an informal hearing on the decision or order had been completed by the pollution control hearings board, no issue may be raised in superior court that was not raised and discussed as part of the fact-finding hearing. No bond may be required on appeals to the superior court or on review by the supreme court unless specifically required by the judge of the superior court.

PART VIII

MISCELLANEOUS

NEW SECTION. Sec. 801. As used in this act, part headings constitute no part of the law.

NEW SECTION. Sec. 802. Sections 101 through 113 of this act constitute a new chapter in Title 90 RCW.

NEW SECTION. Sec. 803. 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."

MOTION

Senator Spanel moved that the following amendment to the striking amendment by Senator Morton be adopted:

On page 41, after line 21 of the amendment, insert the following:

"Sec. 801. RCW 90.03.380 and 1996 c 320 s 19 are each amended to read as follows:

(1) The right to the use of water which has been applied to a beneficial use in the state shall be and remain appurtenant to the land or place upon which the same is used: PROVIDED, HOWEVER, That ((said)) the right may be transferred to another or to others and become appurtenant to any other land or place of use without loss of priority of right theretofore established if such change can be made without detriment or injury to existing rights. The point of diversion of water for beneficial use or the purpose of use may be changed, if such change can be made without detriment or injury to existing rights. A change in the place of use, point of diversion, and/or purpose of use of a water right to enable irrigation of additional acreage or the addition of new uses may be permitted if such change results in no increase in the annual consumptive quantity of water used under the water right. For purposes of this section, "annual consumptive quantity" means the estimated or actual annual amount of water diverted pursuant to the water right, reduced by the estimated annual amount of return flows, averaged over the most recent five-year period of continuous beneficial use of the water right. Before any transfer of such right to use water or change of the point of diversion of water or change of purpose of use can be made, any person having an interest in the transfer or change, shall file a written application therefor with the department, and ((said)) the application shall not be granted until notice of ((said)) the application ((shall be)) is published as provided in RCW 90.03.280. If it shall appear that such transfer or such change may be made without injury or detriment to existing rights, the department shall issue to the applicant a certificate in duplicate granting the right for such transfer or for such change of point of diversion or of use. The certificate so issued shall be filed and be made a record with the department and the duplicate certificate issued to the applicant may be filed with the county auditor in like manner and with the same effect as provided in the original certificate or permit to divert water.

(2) If an application for change proposes to transfer water rights from one irrigation district to another, the department shall, before publication of notice, receive concurrence from each of the irrigation districts that such transfer or change will not adversely affect the ability to deliver water to other landowners or impair the financial integrity of either of the districts.

(3) A change in place of use by an individual water user or users of water provided by an irrigation district need only receive approval for the change from the board of directors of the district if the use of water continues within the irrigation district, and when water is provided by an irrigation entity that is a member of a board of joint control created under chapter 87.80 RCW, approval need only be received from the board of joint control if the use of water continues within the area of jurisdiction of the joint board and the change can be made without detriment or injury to existing rights.

(4) This section shall not apply to trust water rights acquired by the state through the funding of water conservation projects under chapter 90.38 RCW or RCW 90.42.010 through 90.42.070.

Sec. 802. RCW 90.44.100 and 1987 c 109 s 113 are each amended to read as follows:

After an application to, and upon the issuance by the department of an amendment to the appropriate permit or certificate of ground water right, the holder of a valid right to withdraw public ground waters may, without losing his priority of right, construct wells or other means of withdrawal at a new location in substitution for or in addition to those at the original location, or he may change the manner or the place of use of the water((: PROVIDED, HOWEVER, That such)). An amendment shall be issued only after publication of notice of the application and findings as prescribed in the case of an original application. Such amendment shall be issued by the department only on the conditions that: (1) The additional or substitute well or wells shall tap the same body of public ground water as the original well or wells; (2) use of the original well or wells shall be discontinued upon construction of the substitute well or wells; (3) the construction of an additional well or wells shall not enlarge the right conveyed by the original permit or certificate; and (4) other existing rights shall not be impaired. An amendment to a permit or certificate to change the place of use, point of withdrawal, and/or purpose of use of a ground water right to enable irrigation of additional acreage or the addition of new uses may be issued if such change results in no increase in the annual consumptive quantity of water used under a certificate or authorized for use under a permit. For purposes of this section, "annual consumptive quantity" means the estimated or actual annual amount of water withdrawn pursuant to a certificate or the amount authorized for use pursuant to a permit, reduced by the estimated annual amount of return flows. For permits or certificates under which actual amounts of water have been withdrawn, withdrawals and return flows shall be averaged over the most recent five-year period of continuous beneficial use of the ground water right or, if the period of actual continuous beneficial use is less than five years, such lesser period. The department may specify an approved manner of construction and shall require a showing of compliance with the terms of the amendment, as provided in RCW 90.44.080 in the case of an original permit."

Renumber the remaining sections consecutively and correct any internal references accordingly. Debate ensued.

The President Pro Tempore declared the question before the Senate to be the adoption of the amendment by Senator Spanel on page 41, after line 21, to the striking amendment by Senator Morton to Second Substitute House Bill No. 2054.

The motion by Senator Spanel carried and the amendment to the striking amendment was adopted.

MOTION

Senator Spanel moved that the following amendment to the striking amendment by Senator Morton be adopted:On page 41, after line 20 of the amendment, insert the following:

"PART VIII

Sec. 801. RCW 43.155.070 and 1996 c 168 s 3 are each amended to read as follows:

(1) To qualify for loans or pledges under this chapter the board must determine that a local government meets all of the following conditions:

(a) The city or county must be imposing a tax under chapter 82.46 RCW at a rate of at least one-quarter of one percent;

(b) The local government must have developed a long-term plan for financing public works needs;

(c) The local government must be using all local revenue sources which are reasonably available for funding public works, taking into consideration local employment and economic factors; and

(d) Except where necessary to address a public health need or substantial environmental degradation, a county, city, or town that is required or chooses to plan under RCW 36.70A.040 must have adopted a comprehensive plan in conformance with the requirements of chapter 36.70A RCW, after it is required that the comprehensive plan be adopted, and must have adopted development regulations in conformance with the requirements of chapter 36.70A RCW, after it is required that development regulations be adopted.

(2) The board shall develop a priority process for public works projects as provided in this section. The intent of the priority process is to maximize the value of public works projects accomplished with assistance under this chapter. The board shall attempt to assure a geographical balance in assigning priorities to projects. The board shall consider at least the following factors in assigning a priority to a project:

(a) Whether the local government receiving assistance has experienced severe fiscal distress resulting from natural disaster or emergency public works needs;

(b) Whether the project is critical in nature and would affect the health and safety of a great number of citizens;

(d) The number of communities served by or funding the project;

(e) Whether the project is located in an area of high unemployment, compared to the average state unemployment;

(f) Whether the project is the acquisition, expansion, improvement, or renovation by a local government of a public water system that is in violation of health and safety standards, including the cost of extending existing service to such a system;

(g) The relative benefit of the project to the community, considering the present level of economic activity in the community and the existing local capacity to increase local economic activity in communities that have low economic growth; and

(h) Other criteria that the board considers advisable.

(3) Existing debt or financial obligations of local governments shall not be refinanced under this chapter. Each local government applicant shall provide documentation of attempts to secure additional local or other sources of funding for each public works project for which financial assistance is sought under this chapter.

(4) Before November 1 of each year, the board shall develop and submit to the appropriate fiscal committees of the senate and house of representatives a description of the loans made under RCW 43.155.065, 43.155.068, and subsection (7) of this section during the preceding fiscal year and a prioritized list of projects which are recommended for funding by the legislature, including one copy to the staff of each of the committees. The list shall include, but not be limited to, a description of each project and recommended financing, the terms and conditions of the loan or financial guarantee, the local government jurisdiction and unemployment rate, demonstration of the jurisdiction's critical need for the project and documentation of local funds being used to finance the public works project. The list shall also include measures of fiscal capacity for each jurisdiction recommended for financial assistance, compared to authorized limits and state averages, including local government sales taxes; real estate excise taxes; property taxes; and charges for or taxes on sewerage, water, garbage, and other utilities.

(5) The board shall not sign contracts or otherwise financially obligate funds from the public works assistance account before the legislature has appropriated funds for a specific list of public works projects. The legislature may remove projects from the list recommended by the board. The legislature shall not change the order of the priorities recommended for funding by the board.

(6) Subsection (5) of this section does not apply to loans made under RCW 43.155.065, 43.155.068, and subsection (7) of this section.

(7)(a) Loans made for the purpose of capital facilities plans shall be exempted from subsection (5) of this section. In no case shall the total amount of funds utilized for capital facilities plans and emergency loans exceed the limitation in RCW 43.155.065.

(b) For the purposes of this section "capital facilities plans" means those plans required by the growth management act, chapter 36.70A RCW, and plans required by the public works board for local governments not subject to the growth management act.

(8) To qualify for loans or pledges for solid waste or recycling facilities under this chapter, a city or county must demonstrate that the solid waste or recycling facility is consistent with and necessary to implement the comprehensive solid waste management plan adopted by the city or county under chapter 70.95 RCW.

Sec. 802. RCW 70.146.070 and 1991 sp.s. c 32 s 24 are each amended to read as follows:

When making grants or loans for water pollution control facilities, the department shall consider the following:

(1) The protection of water quality and public health;

(2) The cost to residential ratepayers if they had to finance water pollution control facilities without state assistance;

(3) Actions required under federal and state permits and compliance orders;

(4) The level of local fiscal effort by residential ratepayers since 1972 in financing water pollution control facilities;

(5) The extent to which the applicant county or city, or if the applicant is another public body, the extent to which the county or city in which the applicant public body is located, has established programs to mitigate nonpoint pollution of the surface or subterranean water sought to be protected by the water pollution control facility named in the application for state assistance; and

(6) The recommendations of the Puget Sound ((water quality authority)) action team and any other board, council, commission, or group established by the legislature or a state agency to study water pollution control issues in the state.

Except where necessary to address a public health need or substantial environmental degradation, a county, city, or town that is required or chooses to plan under RCW 36.70A.040 may not receive a grant or loan for water pollution control facilities unless it has adopted a comprehensive plan in conformance with the requirements of chapter 36.70A RCW, after it is required that the comprehensive plan be adopted, or unless it has adopted development regulations in conformance with the requirements of chapter 36.70A RCW, after it is required that development regulations be adopted.

NEW SECTION. Sec. 803. Sections 801 and 802 of this act are necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and take effect immediately." Debate ensued.

The President Pro Tempore declared the question before the Senate to be the adoption of the amendment by Senator Spanel on page 41, after line 20, to the striking amendment by Senator Morton to Second Substitute House Bill No. 2054.

The motion by Senator Spanel failed and the amendment to the striking amendment was not adopted on a rising vote.

MOTION

Senator Heavey moved that the following amendment to the striking amendment by Senator Morton be adopted:On page 16, line 23, after "under the" strike "error of law" and insert "preponderance"Debate ensued.

The President declared the question before the Senate to be the adoption of the amendment by Senator Heavey on page 16, line 23, to the striking amendment by Senator Morton to Second Substitute House Bill No. 2054.

The motion by Senator Heavey failed and the amendment to the striking amendment was not adopted on a rising vote.

MOTION

Senator Jacobsen moved that the following amendments to the striking amendment by Senator Morton be considered simultaneously

and be adopted: On page 5, after line 22, delete all material through "government" on line 26, and insert the following:

"(viii) If one or more federal Indian reservations, ceded areas, usual and accustomed areas, or areas with instream flows providing fish habitat that affect usual and accustomed areas, are located in whole or in part within the boundaries of the WRIA, the planning unit shall extend an invitation to each tribal

government with such a reservation or interest in such an area to appoint one member representing that tribal government"

Renumber the sections consecutively and correct any internal references accordingly.

On page 8, after line 2, delete all material through "government" on line 7, and insert the following:

"(viii) If one or more federal Indian reservations, ceded areas, usual and accustomed areas, or areas with instream flows providing fish habitat that affect

usual and accustomed areas, are located in whole or in part within the boundaries of the multi-WRIA area, the planning unit shall extend an invitation to each tribal government with such a reservation or interest in such an area to appoint one member representing that tribal government"

Renumber the sections consecutively and correct any internal references accordingly. Debate ensued.

The President Pro Tempore declared the question before the Senate to be the adoption of the amendments by Senator Jacobsen on page 5, after line 22, and page 8, after line 2, to the striking amendment by Senator Morton to Second Substitute House Bill No. 2054.

The motion by Senator Jacobsen failed and the amendments to the striking amendment were not adopted on a rising vote.

MOTION

Senator Fraser moved that the following amendment to the striking amendment by Senator Morton be adopted: On page 31, after line 18, insert the following:

"PART VII

REGULATORY AUTHORITY

NEW SECTION. Sec. 701. A new section is added to chapter 43.27A RCW to read as follows:

The purpose of this section is to set forth the powers of the department to regulate the withdrawal or diversion of public waters and water or water rights related thereto including regulation based on dates of priority or other pertinent factors. Regulatory actions taken under this section shall be based on examination and determination by the department or the court, as applicable, of the various water rights involved according to the department's records and other records and pertinent facts. The powers set forth in this section may be exercised whether or not a general adjudication relating to the water rights involved has been conducted.

(1) In a regulatory situation (a) where a water right or all water rights proposed for regulation by the department, as well as any right or rights of a senior priority that the proposed regulation is designed to protect, is or are embodied in a certificate or certificates issued under RCW 90.03.240, 90.03.330, 90.38.040, 90.42.040, or 90.44.060 or a permit or permits issued pursuant to RCW 90.03.290 or 90.44.060; or (b) where a flow or level has been established by rule pursuant to chapter 90.22 or 90.54 RCW; or (c) where it appears to the department that public waters are being withdrawn without any right or other appropriate authority whatsoever, the department in its discretion is authorized to regulate the right or rights under either RCW 43.27A.190 or subsection (2) of this section.

(2) In a regulatory situation where one or more of the water rights proposed for regulation by the department, as well as any right or rights of a senior priority that the proposed regulation is designed to protect, is not or are not embodied in a permit or certificate as described in subsection (1) of this section, the department, as its sole and exclusive power to regulate, is authorized to bring an appropriate action at law or in equity, including seeking injunctive relief, as it may deem necessary. Where actions are brought in a state court, the actions shall be initiated in the superior court of the county where the point or points of diversion of the water right or rights proposed for regulation are located. If the points of diversion are located in more than one county, the department may bring the action in a county where a point of diversion is located.

(3) Nothing in this section authorizes the department to accomplish a general adjudication of water rights proceeding or the substantial equivalent of a general adjudication of water rights. The exclusive procedure for accomplishing a general adjudication of water rights is under RCW 90.03.110 through 90.03.245 or 90.44.220.

(4) Nothing in this section shall amend, revise, or repeal RCW 90.14.130 or 90.14.200.

(5) This section does not in any way modify regulatory powers previously placed with the department except as provided in subsections (1) and (2) of this section."

Renumber the sections consecutively and correct any internal references accordingly. Debate ensued.

The President declared the question before the Senate to be the adoption of the amendment by Senator Fraser on page 31, after line

18, to the striking amendment by Senator Morton to Second Substitute House Bill No. 2054.

The motion by Senator Fraser failed and the amendment to the striking amendment was not adopted.

The President Pro Tempore declared the question before the Senate to be the adoption of the striking amendment by Senator Morton, as amended under suspension of the rules.

The motion by Senator Morton carried and the striking amendment, as amended under suspension of the rules, was adopted on a rising vote.

MOTIONS

On motion of Senator Johnson, the following title amendments were considered simultaneously and were adopted:

On page 1, line 1 of the title, after "management;" strike the remainder of the title and insert "amending RCW 90.54.040, 90.54.020, 90.54.180, 90.03.383, 90.03.330, 90.14.140, 43.21B.110, 43.21B.130, 43.21B.240, 43.21B.305, 43.21B.310, 43.27A.190, 90.14.130, 90.14.190, 90.14.200, and 90.66.080; reenacting and amending RCW 34.05.514; adding new sections to chapter 90.03 RCW; adding a new section to chapter 34.05 RCW; adding new sections to chapter 43.21B RCW; adding a new chapter to Title 90 RCW; and creating new sections."

On page 42, line 8 of the title amendment, after "90.14.200," strike "and 90.66.080" and insert "90.66.080, 90.03.380, and 90.44.100" On motion of Senator Johnson, the rules were suspended, Second Substitute House Bill No. 2054, as amended by the Senate under suspension of the rules, was advanced to third reading, the second reading considered the third and the bill was placed on final passage.

Debate ensued.

MOTION

On motion of Senator Franklin, Senator Wojahn was excused.

The President Pro Tempore declared the question before the Senate to be the roll call on the final passage of Second Substitute House Bill No. 2054, as amended by the Senate under suspension of the rules.

ROLL CALL

The Secretary called the roll on the final passage of Second Substitute House Bill No. 2054, as amended by the Senate under suspension of the rules, and the bill passed the Senate by the following vote: Yeas, 25; Nays, 21; Absent, 0; Excused, 3.

Voting yea: Senators Anderson, Benton, Deccio, Finkbeiner, Hale, Hochstatter, Horn, Johnson, Long, McDonald, Morton, Newhouse, Oke, Prince, Roach, Rossi, Schow, Sellar, Stevens, Strannigan, Swecker, West, Winsley, Wood and Zarelli - 25. Voting nay: Senators Bauer, Brown, Fairley, Franklin, Fraser, Goings, Hargrove, Haugen, Heavey, Jacobsen, Kline, Kohl, Loveland, McAuliffe, Patterson, Prentice, Rasmussen, Sheldon, Spanel, Swanson and Thibaudeau - 21. Excused: Senators McCaslin, Snyder and Wojahn - 3. SECOND SUBSTITUTE HOUSE BILL NO. 2054, as amended by the Senate under suspension of the rules, having received the constitutional majority, was declared passed. There being no objection, the title of the bill will stand as the title of the act.

MOTION

On motion of Senator Johnson, Second Substitute House Bill No. 2054, as amended by the Senate under suspension of the rules, was ordered immediately transmitted to the House of Representatives.

MESSAGE FROM THE HOUSE

April 23, 1997

MR. PRESIDENT:

The House insists on its position regarding the Senate amendment(s) to SECOND SUBSTITUTE HOUSE BILL NO. 1201 and asks the Senate for a conference thereon. The Speaker has appointed the following members as conferees: Representatives Buck, Mastin and Doumit.

TIMOTHY A. MARTIN, Chief Clerk

MOTION

On motion of Senator Schow, the Senate granted the request of the House for a conference on Second Substitute House Bill No. 1201 and the Senate amendment(s) thereto.

APPOINTMENT OF CONFERENCE COMMITTEE

The President Pro Tempore appointed as members of the Conference Committee on Second Substitute House Bill No. 1201 and the Senate amendment(s) thereto: Senators Horn, Heavey and Schow.

MOTION

On motion of Senator Johnson, the Conference Committee appointments were confirmed.

MOTION

At 11:14 a.m., on motion of Senator Johnson, the Senate recessed until 3:00 p.m.

The Senate was called to order at 3:00 p.m. by President Owen.

MOTION

On motion of Senator Johnson, the Senate reverted to the third order of business.

MESSAGE FROM THE GOVERNOR

April 24, 1997

TO THE HONORABLE PRESIDENT AND MEMBERS,

THE SENATE OF THE STATE OF WASHINGTON

Ladies and Gentlemen:

I have the honor to advise you that on April 24, 1997, Governor Locke approved the following Senate Bills entitled:

Substitute Senate Bill No. 5102

Relating to an annual recreational surcharge on personal use food fish licenses.

Senate Bill No. 5154

Relating to maximum gross weight of vehicles.

Senate Bill No. 5299

Relating to shoreline management permits.

Senate Bill No. 5326

Relating to carrying a firearm.

Senate Bill No. 5343

Relating to the determination of where a retail sale of towing services occurs for tax purposes.

Substitute Senate Bill No. 5541

Relating to restricting the distance a vehicle may travel in a two-way left turn lane.

Senate Bill No. 5754

Relating to boxing, kickboxing, martial arts, and wrestling.

Senate Bill No. 5871

Relating to the definition of law enforcement officer.

Sincerely,

EVERETT H. BILLINGSLEA, General Counsel

VETO MESSAGE FROM THE GOVERNOR

SUBSTITUTE SENATE BILL NO. 5005

April 24, 1997

To the Honorable President and Members,

The Senate of the State of Washington

Ladies and Gentlemen:

I am returning herewith, without my approval, Substitute Senate Bill No. 5005 entitled:

"AN ACT Relating to sentencing for multiple violent crimes;"

Under the Washington state sentencing guidelines, certain crimes are defined as "serious violent offenses" and others are defined as "violent offenses". This legislation would dramatically increase the jail time for adult felons who are convicted of two or more "violent offenses" at the same proceeding by mandating that the sentences run consecutively, rather than concurrently.

While I strongly agree that criminals who commit several violent crimes at the same time should be punished more severely than those who do not, I am concerned that the language in SSB 5005 is over broad.

Under this legislation, a person convicted of three counts of vehicular assault for injuring three people in the same car crash would automatically be sentenced to three consecutive sentences. In some cases that result may be very appropriate, however in many cases it may not. Our sentencing guidelines already impose enhanced sentences based on multiple victims and other aggravating factors. Judges also must order consecutive sentences for "serious violent offenses: and have the discretion to order consecutive sentences when warranted for "violent offenses".

I support very stiff sentences for violent offenders, however I cannot agree with over broad legislation that could result in inappropriate or unfair sentences.

For these reasons, I have vetoed Substitute Senate Bill No. 5005 in its entirety.

Respectfully submitted,

GARY LOCKE, Governor

MOTION

On motion of Senator Johnson, the Veto Message on Substitute Senate Bill No. 5005 was held on the desk.

VETO MESSAGE FROM THE GOVERNOR

SENATE BILL NO. 5047

April 24, 1997

To the Honorable President and Members,

The Senate of the State of Washington

Ladies and Gentlemen:

I am returning herewith, without my approval, Senate Bill No. 5047 entitled:

"AN ACT Relating to arming community corrections officers;"

Senate Bill 5047 would have allowed community corrections officers to carry firearms during the course of their official field duties. The bill provides that the Department of Corrections is not responsible for providing or paying for any training related to firearms use, but does require that the Criminal Justice Training Commission set training and other standards.

I understand the personal safety concerns of the individual community corrections officers. I believe that the Department of Corrections and the officers should arrive at some agreement specifying the circumstances whereby individuals could carry firearms under rules established by the department. Such an agreement should also provide for the necessary training and equipment for the community corrections officers.

SB 5047, however, would create major liability issues for the state without these protections.

For these reasons, I have vetoed Senate Bill No. 5047 in its entirety.

Respectfully submitted,

GARY LOCKE, Governor

MOTION

On motion of Senator Johnson, the Veto Message on Senate Bill No. 5047 was held on the desk.

VETO MESSAGE FROM THE GOVERNOR

SENATE BILL NO. 5093

April 24, 1997

To the Honorable President and Members,

The Senate of the State of Washington

Ladies and Gentlemen:

I am returning herewith, without my approval, Senate Bill No. 5093 entitled:

"AN ACT Relating to capital punishment sentencing;"

This legislation would have repealed the requirement that the state supreme court, in its mandatory sentence review in capital punishment cases, conduct a "proportionality review". The proportionality review is a determination whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.

The purpose of the proportionality review is to ensure that death sentences are imposed evenhandedly across the state, and not "arbitrarily or freakishly", or based on race. I am a strong supporter of the death penalty. However, I am also a strong supporter of fairness. The proportionality review has not yet resulted in the reversal of any death sentences. Nonetheless, I believe that it is an important safeguard.

For these reasons, I have vetoed Senate Bill No. 5093 in its entirety.

Respectfully submitted,

GARY LOCKE, Governor

MOTION

On motion of Senator Johnson, the Veto Message on Senate Bill No. 5093 was held on the desk.

VETO MESSAGE FROM THE GOVERNOR

SUBSTITUTE SENATE BILL NO. 5782

April 24, 1997

To the Honorable President and Members,

The Senate of the State of Washington

Ladies and Gentlemen:

I am returning herewith, without my approval as to Substitute Senate Bill No. 5782 entitled:

"AN ACT Relating to bid requirements for water-sewer districts;"

The intent of this legislation was to allow water-sewer districts to keep pace with inflation by increasing the threshold for outside construction bids. It was never intended to jeopardize the current operations of these districts. However, the ambiguity and vagueness of the language contained in this bill would very likely result in unintended consequences that would greatly increase expenses for water-sewer districts.

For example, small projects that are currently performed in-house may have to be redirected as contractor bids. The use of vendor listings may be prohibited, which would reduce the flexibility of materials procurement. The advocates and the prime sponsor of this bill have agreed that it is fatally flawed and should be vetoed.

For these reasons, I have vetoed Substitute Senate Bill No. 5782 in its entirety.

Respectfully submitted,

GARY LOCKE, Governor

MOTION

On motion of Senator Johnson, the Veto Message on Substitute Senate Bill No. 5782 was held on the desk.

MESSAGE FROM THE SECRETARY OF STATE

The Honorable Brad Owen

President of the Senate

Legislature of the State of Washington

Olympia, Washington 98504

Dear President Owen:

We respectfully transmit for your consideration the following bills which has been partially vetoed by the Governor, together with the official veto message setting forth his objections to the sections or items of the bills, as required by Article III, section 12, of the Washington State Constitution:

Sections 4 and 5, of Engrossed Substitute Senate Bill No. 5044, the remainder of which has been designated Chapter 196,

Laws of 1997 Regular Session.

Sections 1 and 2, of Substitute Senate Bill No. 5569, the remainder of which has been designated Chapter 203,

Laws of 1997 Regular Session.

Section 1, of Engrossed Senate Bill No. 5600, the remainder of which has been designated Chapter 204, Laws of 1997 Regular Session.

Sections 2, 3, 7, 15, 19 and 24, of Engrossed Substitute Senate Bill No. 5970, the remainder of which has been designated Chapter 182,

Laws of 1997 Regular Session.

IN TESTIMONY WHEREOF, I have hereunto set my hand,

and affixed the Seal of the state of Washington, this

25th day of April, 1997.

(Seal) DONALD F. WHITING

Assistant Secretary of State

PARTIAL VETO MESSAGE FROM THE GOVERNOR

ENGROSSED SUBSTITUTE SENATE BILL NO. 5044

April 24, 1997

To the Honorable President and Members,

The Senate of the State of Washington

Ladies and Gentlemen:

I am returning herewith, without my approval as to sections 4 and 5, Engrossed Substitute Senate Bill No. 5044 entitled:

"AN ACT Relating to crimes;"

This legislation relates to the criminal prosecution of persons who are infected with the human immunodeficiency virus (HIV) and other sexually transmitted diseases (STD's). ESSB 5044 raises the penalties for the crime of intentional exposure or transmission of HIV to another person by reclassifying it from second degree to first degree assault. I agree that this is an appropriate penalty when considering that the transmission of the HIV could lead to AIDS and eventual death.

Section 3 of the bill removes the "three years and a day" rule that currently prevents a homicide prosecution if death does not occur within that period of time following the criminal act. Under section 3, prosecutors are able to file homicide charges any time after the victim dies. An act which results in a homicide should not escape punishment and I agree with the purpose of section 3.

Section 4 of the bill does not add meaningfully to what prosecutors can accomplish under section 3 and therefore I have vetoed it.

Section 5 of the bill requires that public health officers inform law enforcement of any person with an STD whose behavior presents an imminent danger. As section 5 is written, it may adversely affect HIV/AIDS prevention efforts and could reverse the gains that have been made in slowing the spread of this disease and other STD's.

Current law allows public health officers to give the prosecutor the names of individuals who are intentionally spreading STD's. Section 5 of the bill does not add constructively to what local health officers are already empowered to do.

For these reasons I have vetoed sections 4 and 5 of Engrossed Substitute Senate Bill No. 5044.

With the exception of sections 4 and 5, Engrossed Substitute Senate Bill No. 5044 is approved.

Respectfully submitted,

GARY LOCKE, Governor

MOTION

On motion of Senator Johnson, the partial veto message on Engrossed Substitute Senate Bill No. 5044 was held at the desk.

PARTIAL VETO MESSAGE FROM THE GOVERNOR

SUBSTITUTE SENATE BILL NO. 5569

April 24, 1997

To the Honorable President and Members,

The Senate of the State of Washington

Ladies and Gentlemen:

I am returning herewith, without my approval as to sections 1 and 5, Substitute Senate Bill No. 5569 entitled:

"AN ACT Relating to overtime compensation for commissioned salespersons;"

Section 1 of SSB 5569 is an attempt to interpret the legislative intent of the state wage and hour law, passed in 1975, and to thereby influence pending litigation. This is not only unfair and unjust, but also it raises constitutional questions. The power to interpret legislative intent rests with the judiciary. It is my opinion that a legislative body should not attempt to usurp that duty or interpret the intent or thoughts of a legislative body which met over twenty years ago.

The possibility of abuse by unscrupulous employers also concerns me. Under the auspices of this bill, an employer might attempt to assign commissioned sales person to non-sales duties in order to avoid paying overtime. I will direct the Department of Labor and Industries to assess the implementation of this statute and report its impact to both the legislature and my office.

Section 5 is an emergency clause, and is unnecessary.

For these reasons, I have vetoed sections 1 and 5 of Substitute Senate Bill No. 5569.

With the exceptions of sections 1 and 5, Substitute Senate Bill No. 5569 is approved.

Respectfully submitted,

GARY LOCKE, Governor

MOTION

On motion of Senator Johnson, the partial veto message on Substitute Senate Bill No. 5569 was held at the desk.

PARTIAL VETO MESSAGE FROM THE GOVERNOR

ENGROSSED SENATE BILL NO. 5600

April 24, 1997

To the Honorable President and Members,

The Senate of the State of Washington

Ladies and Gentlemen:

I am returning herewith, without my approval as to section 5, Engrossed Senate Bill No. 5600 entitled:

"AN ACT Relating to internal matters for the operation of counties;"

This legislation is primarily a technical bill that deletes archaic statutes, makes other financial statutes more usable, and provides county auditors with more flexibility in the administration of their duties.

Section 5 of this bill would have allowed counties with populations between 250,000 and 499,999 to prescribe by ordinance alternative administration of juvenile probation and detention services. Such a provision would effectively allow a select few counties to give themselves exclusive control over juvenile services without the concurrence of the courts.

Current law already provides a process whereby counties may assume responsibility for these services upon agreement from the court. Courts should not be excluded, without their concurrence, from the decision making regarding the administration of juvenile detention and probation services. The courts see juvenile offenders who come before them firsthand, and have extensive knowledge of the types of services that are needed. Additionally, there appears to be no legitimate reason to differentiate between counties merely on the basis of population regarding the provision of these services.

For these reasons, I have vetoed section 5 of Engrossed Senate Bill No. 5600.

With the exception of section 5, Engrossed Senate Bill No. 5600 is approved.

Respectfully submitted,

GARY LOCKE, Governor

MOTION

On motion of Senator Johnson, the partial veto message on Engrossed Senate Bill No. 5600 was held at the desk.

PARTIAL VETO MESSAGE FROM THE GOVERNOR

ENGROSSED SUBSTITUTE SENATE BILL NO. 5970

April 23, 1997

To the Honorable President and Members,

The Senate of the State of Washington

Ladies and Gentlemen:

I am returning herewith, without my approval as to sections 2, 3, 7, 15, 17, 19 and 24, Engrossed Substitute Senate Bill No. 5970 entitled:

"AN ACT Relating to expanding days of sale while not changing days of use of common fireworks and clarifying other provisions of the existing state fireworks law;"

Engrossed Substitute Senate Bill No. 5970 makes both substantive changes and technical corrections to the state fireworks law.

Section 2 and 3 of the bill, respectively, would make state licenses and locally issued permits freely transferable. When a limited number of permits or licenses exist, free transferability could result in all permits or licenses being controlled by a single entity or small group.

Section 7 would create a mandatory minimum penalty of not less than 30 days in jail and a fine of not less than $5,000 for knowingly manufacturing, importing, transporting, storing, selling, or possessing with intent to sell as fireworks, explosives that are not fireworks. It would also reduce that crime from a class C felony to a gross misdemeanor; such a reduction is inappropriate. The mandatory minimum sentence prescribed in section 7 is inconsistent with our established sentencing guidelines and is unnecessary.

Section 15 of the bill is unnecessary after sections 2 and 3 have been vetoed.

Section 17 of the bill lengthens period during which fireworks may be sold. While the bill does not extend the period during which fireworks may be legally used, use would be extremely difficult to control during the extended sales period.

Section 24 of the bill would limit the fees that a city or county may charge for all fireworks sales authorizations to a total of $100 per year, and for fireworks display permits to $100 each. It also would specifically prohibit cities and counties from charging for the costs of business licenses, environmental impacts, inspections, and traffic and crowd control. I believe that local governments should not be prevented from recouping the reasonable costs they incur in allowing fireworks sales and displays.

For these reasons, I have vetoed sections 2, 3, 7, 15, 17, 19 and 24 of Engrossed Substitute Senate Bill No. 5970.

With the exception of sections 2, 3, 7, 15, 17, 19 and 24, I am approving Engrossed Substitute Senate Bill No. 5970.

Respectfully submitted,

GARY LOCKE, Governor

MOTION

On motion of Senator Johnson, the partial veto message on Engrossed Substitute Senate Bill No. 5970 was held at the desk.

MOTION

On motion of Senator Johnson, the Senate returned to the fourth order of business.

REPORT OF CONFERENCE COMMITTEE

SHB 2097 April 24, 1997

Includes "New Items": YES

An act relating to investment practices of insurance companies

MR. PRESIDENT:

MR. SPEAKER:

We of your Conference Committee, to whom was referred SUBSTITUTE HOUSE BILL NO. 2097, Insurance companies investments, have had the same under consideration and we recommend that:

All previous amendments not be adopted and the following striking amendment by the Conference Committee be adopted:Strike everything after the enacting clause and insert the following:

"NEW SECTION. Sec. 1. A new section is added to chapter 48.13 RCW to read as follows:

(1) An insurer may, directly or indirectly through an investment subsidiary, engage in derivative transactions under this section under the following conditions:

(a) An insurer may use derivative instruments under this section to engage in hedging transactions and certain income generation transactions, as these terms may be further defined by rule by the insurance commissioner;

(b) Derivative instruments shall not be used for speculative purposes, but only as stated in (a) of this subsection;

(c) An insurer shall be able to demonstrate to the insurance commissioner the intended hedging characteristics and the ongoing effectiveness of the derivative transaction or combination of transactions through cash flow testing or other appropriate analysis;

(d) An insurer may enter into hedging transactions under this section if, as a result of and after giving effect to the transaction:

(i) The aggregate statement value of options, caps, floors, and warrants not attached to another financial instrument purchased and used in hedging transactions does not exceed seven and one-half percent of its admitted assets;

(ii) The aggregate statement value of options, caps, and floors written in hedging transactions does not exceed three percent of its admitted assets; and

(iii) The aggregate potential exposure of collars, swaps, forwards, and futures used in hedging transactions does not exceed six and one-half percent of its admitted assets;

(e) An insurer may only enter into the following types of income generation transactions if, as a result of and after giving effect to the transactions, the aggregate statement value of the fixed income assets that are subject to call or that generate the cash flows for payments under the caps or floors, plus the face value of fixed income securities underlying a derivative instrument subject to call, plus the amount of the purchase obligations under the puts, does not exceed ten percent of its admitted assets:

(i) Sales of covered call options on noncallable fixed income securities, callable fixed income securities if the option expires by its terms prior to the end of the noncallable period, or derivative instruments based on fixed income securities;

(ii) Sales of covered call options on equity securities, if the insurer holds in its portfolio, or can immediately acquire through the exercise of options, warrants, or conversion rights already owned, the equity securities subject to call during the complete term of the call option sold;

(iii) Sales of covered puts on investments that the insurer is permitted to acquire under this chapter, if the insurer has escrowed, or entered into a custodian agreement segregating, cash or cash equivalents with a market value equal to the amount of its purchase obligations under the put during the complete term of the put option sold; or

(iv) Sales of covered caps or floors, if the insurer holds in its portfolio the investments generating the cash flow to make the required payments under the caps or floors during the complete term that the cap or floor is outstanding;

(f) An insurer shall include all counterparty exposure amounts in determining compliance with general diversification requirements and medium and low grade investment limitations under this chapter; and

(g) Pursuant to rules adopted by the insurance commissioner under subsection (3) of this section, the commissioner may approve additional transactions involving the use of derivative instruments in excess of the limitations in (d) of this subsection or for other risk management purposes under rules adopted by the commissioner, but replication transactions shall not be permitted for other than risk management purposes.

(2) For purposes of this section:

(a) "Cap" means an agreement obligating the seller to make payments to the buyer, with each payment based on the amount by which a reference price or level or the performance or value of one or more underlying interests exceeds a predetermined number, sometimes called the strike rate or strike price;

(b) "Collar" means an agreement to receive payments as the buyer of an option, cap, or floor and to make payments as the seller of a different option, cap, or floor;

(c) "Counterparty exposure amount" means the net amount of credit risk attributable to a derivative instrument entered into with a business entity other than through a qualified exchange, qualified foreign exchange, or cleared through a qualified clearinghouse. The amount of the credit risk equals the market value of the over-the-counter derivative instrument if the liquidation of the derivative instrument would result in a final cash payment to the insurer, or zero if the liquidation of the derivative instrument would not result in a final cash payment to the insurer.

If over-the-counter derivative instruments are entered into under a written master agreement which provides for netting of payments owed by the respective parties, and the domiciliary jurisdiction of the counterparty is either within the United States or, if not within the United States, within a foreign jurisdiction listed in the purposes and procedures of the securities valuation office as eligible for netting, the net amount of credit risk shall be the greater of zero or the sum of:

(i) The market value of the over-the-counter derivative instruments entered into under the agreement, the liquidation of which would result in a final cash payment to the insurer; and

(ii) The market value of the over-the-counter derivative instruments entered into under the agreement, the liquidation of which would result in a final cash payment by the insurer to the business entity.

For open transactions, market value shall be determined at the end of the most recent quarter of the insurer's fiscal year and shall be reduced by the market value of acceptable collateral held by the insurer or placed in escrow by one or both parties;

(d) "Covered" means that an insurer owns or can immediately acquire, through the exercise of options, warrants or conversion rights already owned, the underlying interest in order to fulfill or secure its obligations under a call option, cap or floor it has written, or has set aside under a custodial or escrow agreement cash or cash equivalents with a market value equal to the amount required to fulfill its obligations under a put option it has written, in an income generation transaction;

(e) "Derivative instrument" means an agreement, option, instrument, or a series or combination thereof:

(i) To make or take delivery of, or assume or relinquish, a specified amount of one or more underlying interests, or to make a cash settlement in lieu thereof; or

(ii) That has a price, performance, value, or cash flow based primarily upon the actual or expected price, level, performance, value, or cash flow of one or more underlying interests.

Derivative instruments include options, warrants used in a hedging transaction and not attached to another financial instrument, caps, floors, collars, swaps, forwards, futures, and any other agreements, options, or instruments substantially similar thereto or any series or combination thereof and any agreements, options, or instruments permitted under rules adopted by the commissioner under subsection (3) of this section;

(f) "Derivative transaction" means a transaction involving the use of one or more derivative instruments;

(g) "Floor" means an agreement obligating the seller to make payments to the buyer in which each payment is based on the amount by which a predetermined number, sometimes called the floor rate or price, exceeds a reference price, level, performance, or value of one or more underlying interests;

(h) "Future" means an agreement, traded on a qualified exchange or qualified foreign exchange, to make or take delivery of, or effect a cash settlement based on the actual or expected price, level, performance, or value of, one or more underlying interests;

(i) "Hedging transaction" means a derivative transaction which is entered into and maintained to reduce:

(i) The risk of a change in the value, yield, price, cash flow, or quantity of assets or liabilities which the insurer has acquired or incurred or anticipates acquiring or incurring; or

(ii) The currency exchange rate risk or the degree of exposure as to assets or liabilities which an insurer has acquired or incurred or anticipates acquiring or incurring;

(j) "Option" means an agreement giving the buyer the right to buy or receive (a "call option"), sell or deliver (a "put option"), enter into, extend, or terminate or effect a cash settlement based on the actual or expected price, level, performance, or value of one or more underlying interests;

(k) "Swap" means an agreement to exchange or to net payments at one or more times based on the actual or expected price, level, performance, or value of one or more underlying interests;

(l) "Underlying interest" means the assets, liabilities, other interests, or a combination thereof underlying a derivative instrument, such as any one or more securities, currencies, rates, indices, commodities, or derivative instruments; and

(m) "Warrant" means an instrument that gives the holder the right to purchase an underlying financial instrument at a given price and time or at a series of prices and times outlined in the warrant agreement. Warrants may be issued alone or in connection with the sale of other securities, for example, as part of a merger or recapitalization agreement, or to facilitate divestiture of the securities of another business entity.

(3) The insurance commissioner may adopt rules implementing the provisions of this section."

On page 1, line 1 of the title, after "companies;" strike the remainder of the title and insert "and adding a new section to chapter 48.13 RCW.", and that the bill do pass as recommended by the Conference Committee.

Signed by Senators Winsley, Heavey, Hale; Representatives L. Thomas, Benson, Keiser.

MOTION

Senator Hale moved that the Senate do adopt the Report of the Conference Committee on Substitute House Bill No. 2097.

Debate ensued.

The President declared the question before the Senate to be the adoption of the Report of the Conference Committee on Substitute House Bill No. 2097.

The motion by Senator Hale carried and the Senate adopted the Report of the Conference Committee on Substitute House Bill No. 2097.

MOTIONS

On motion of Senator Franklin, Senator Haugen was excused.

On motion of Senator Hale, Senators Prince and Sellar were excused.

The President declared the question before the Senate to be the roll call on the final passage of Substitute House Bill No. 2097, as recommended by the Conference Committee.

ROLL CALL

The Secretary called the roll on the final passage of Substitute House Bill No. 2097, as recommended by the Conference Committee, and the bill passed the Senate by the following vote: Yeas, 44; Nays, 0; Absent, 0; Excused, 5.

Voting yea: Senators Anderson, Bauer, Benton, Brown, Deccio, Fairley, Finkbeiner, Franklin, Fraser, Goings, Hale, Hargrove, Heavey, Hochstatter, Horn, Jacobsen, Johnson, Kline, Kohl, Long, Loveland, McAuliffe, McDonald, Morton, Newhouse, Oke, Patterson, Prentice, Rasmussen, Roach, Rossi, Schow, Sheldon, Spanel, Stevens, Strannigan, Swanson, Swecker, Thibaudeau, West, Winsley, Wojahn, Wood and Zarelli - 44.

Excused: Senators Haugen, McCaslin, Prince, Sellar and Snyder - 5. SUBSTITUTE HOUSE BILL NO. 2097, as recommended by the Conference Committee, having received the constitutional majority, was declared passed. There being no objection, the title of the bill will stand as the title of the act.

REPORT OF CONFERENCE COMMITTEE

SHB 2279 April 24, 1997

Includes "New Items": YES

Revising the basic health plan

MR. PRESIDENT:

MR. SPEAKER:

We of your Conference Committee, to whom was referred SUBSTITUTE HOUSE BILL NO. 2279, Basic health plan, have had the same under consideration and we recommend that:

All previous amendments not be adopted and the following striking amendment by the Conference Committee be adopted:Strike everything after the enacting clause and insert the following:

"Sec. 1. RCW 70.47.015 and 1995 c 265 s 1 are each amended to read as follows:

(1) The legislature finds that the basic health plan has been an effective program in providing health coverage for uninsured residents. Further, since 1993, substantial amounts of public funds have been allocated for subsidized basic health plan enrollment.

(2) It is the intent of the legislature that the basic health plan enrollment be expanded expeditiously, consistent with funds available in the health services account, with the goal of two hundred thousand adult subsidized basic health plan enrollees and one hundred thirty thousand children covered through expanded medical assistance services by June 30, 1997, with the priority of providing needed health services to children in conjunction with other public programs.

(3) Effective January 1, 1996, basic health plan enrollees whose income is less than one hundred twenty-five percent of the federal poverty level shall pay at least a ten-dollar premium share.

(4) No later than July 1, 1996, the administrator shall implement procedures whereby hospitals licensed under chapters 70.41 and 71.12 RCW, health carrier, rural health care facilities regulated under chapter 70.175 RCW, and community and migrant health centers funded under RCW 41.05.220, may expeditiously assist patients and their families in applying for basic health plan or medical assistance coverage, and in submitting such applications directly to the health care authority or the department of social and health services. The health care authority and the department of social and health services shall make every effort to simplify and expedite the application and enrollment process.

(5) No later than July 1, 1996, the administrator shall implement procedures whereby health insurance agents and brokers, licensed under chapter 48.17 RCW, may expeditiously assist patients and their families in applying for basic health plan or medical assistance coverage, and in submitting such applications directly to the health care authority or the department of social and health services. Brokers and agents ((shall be entitled to)) may receive a commission for each individual sale of the basic health plan to anyone not ((at anytime previously)) signed up within the previous five years and a commission for each group sale of the basic health plan, if funding for this purpose is provided in a specific appropriation to the health care authority. No commission shall be provided upon a renewal. Commissions shall be determined based on the estimated annual cost of the basic health plan, however, commissions shall not result in a reduction in the premium amount paid to health carriers. For purposes of this section "health carrier" is as defined in RCW 48.43.005. The administrator may establish: (a) Minimum educational requirements that must be completed by the agents or brokers; (b) an appointment process for agents or brokers marketing the basic health plan; or (c) standards for revocation of the appointment of an agent or broker to submit applications for cause, including untrustworthy or incompetent conduct or harm to the public. The health care authority and the department of social and health services shall make every effort to simplify and expedite the application and enrollment process.

Sec. 2. RCW 70.47.060 and 1995 c 266 s 1 and 1995 c 2 s 4 are each reenacted and amended to read as follows:

The administrator has the following powers and duties:

(1) To design and from time to time revise a schedule of covered basic health care services, including physician services, inpatient and outpatient hospital services, prescription drugs and medications, and other services that may be necessary for basic health care. In addition, the administrator may, to the extent that funds are available, offer as basic health plan services chemical dependency services, mental health services and organ transplant services; however, no one service or any combination of these three services shall increase the actuarial value of the basic health plan benefits by more than five percent excluding inflation, as determined by the office of financial management. All subsidized and nonsubsidized enrollees in any participating managed health care system under the Washington basic health plan shall be entitled to receive (([covered basic health care services])) covered basic health care services in return for premium payments to the plan. The schedule of services shall emphasize proven preventive and primary health care and shall include all services necessary for prenatal, postnatal, and well-child care. However, with respect to coverage for groups of subsidized enrollees who are eligible to receive prenatal and postnatal services through the medical assistance program under chapter 74.09 RCW, the administrator shall not contract for such services except to the extent that such services are necessary over not more than a one-month period in order to maintain continuity of care after diagnosis of pregnancy by the managed care provider. The schedule of services shall also include a separate schedule of basic health care services for children, eighteen years of age and younger, for those subsidized or nonsubsidized enrollees who choose to secure basic coverage through the plan only for their dependent children. In designing and revising the schedule of services, the administrator shall consider the guidelines for assessing health services under the mandated benefits act of 1984, RCW 48.42.080, and such other factors as the administrator deems appropriate.

However, with respect to coverage for subsidized enrollees who are eligible to receive prenatal and postnatal services through the medical assistance program under chapter 74.09 RCW, the administrator shall not contract for such services except to the extent that the services are necessary over not more than a one-month period in order to maintain continuity of care after diagnosis of pregnancy by the managed care provider.

(2)(a) To design and implement a structure of periodic premiums due the administrator from subsidized enrollees that is based upon gross family income, giving appropriate consideration to family size and the ages of all family members. The enrollment of children shall not require the enrollment of their parent or parents who are eligible for the plan. The structure of periodic premiums shall be applied to subsidized enrollees entering the plan as individuals pursuant to subsection (9) of this section and to the share of the cost of the plan due from subsidized enrollees entering the plan as employees pursuant to subsection (10) of this section.

(b) To determine the periodic premiums due the administrator from nonsubsidized enrollees. Premiums due from nonsubsidized enrollees shall be in an amount equal to the cost charged by the managed health care system provider to the state for the plan plus the administrative cost of providing the plan to those enrollees and the premium tax under RCW 48.14.0201.

(c) An employer or other financial sponsor may, with the prior approval of the administrator, pay the premium, rate, or any other amount on behalf of a subsidized or nonsubsidized enrollee, by arrangement with the enrollee and through a mechanism acceptable to the administrator((, but in no case shall the payment made on behalf of the enrollee exceed the total premiums due from the enrollee)).

(d) To develop, as an offering by all health carriers providing coverage identical to the basic health plan, a model plan benefits package with uniformity in enrollee cost-sharing requirements.

(3) To design and implement a structure of enrollee cost sharing due a managed health care system from subsidized and nonsubsidized enrollees. The structure shall discourage inappropriate enrollee utilization of health care services, and may utilize copayments, deductibles, and other cost-sharing mechanisms, but shall not be so costly to enrollees as to constitute a barrier to appropriate utilization of necessary health care services.

(4) To limit enrollment of persons who qualify for subsidies so as to prevent an overexpenditure of appropriations for such purposes. Whenever the administrator finds that there is danger of such an overexpenditure, the administrator shall close enrollment until the administrator finds the danger no longer exists.

(5) To limit the payment of subsidies to subsidized enrollees, as defined in RCW 70.47.020. The level of subsidy provided to persons who qualify may be based on the lowest cost plans, as defined by the administrator.

(6) To adopt a schedule for the orderly development of the delivery of services and availability of the plan to residents of the state, subject to the limitations contained in RCW 70.47.080 or any act appropriating funds for the plan.

(7) To solicit and accept applications from managed health care systems, as defined in this chapter, for inclusion as eligible basic health care providers under the plan. The administrator shall endeavor to assure that covered basic health care services are available to any enrollee of the plan from among a selection of two or more participating managed health care systems. In adopting any rules or procedures applicable to managed health care systems and in its dealings with such systems, the administrator shall consider and make suitable allowance for the need for health care services and the differences in local availability of health care resources, along with other resources, within and among the several areas of the state. Contracts with participating managed health care systems shall ensure that basic health plan enrollees who become eligible for medical assistance may, at their option, continue to receive services from their existing providers within the managed health care system if such providers have entered into provider agreements with the department of social and health services.

(8) To receive periodic premiums from or on behalf of subsidized and nonsubsidized enrollees, deposit them in the basic health plan operating account, keep records of enrollee status, and authorize periodic payments to managed health care systems on the basis of the number of enrollees participating in the respective managed health care systems.

(9) To accept applications from individuals residing in areas served by the plan, on behalf of themselves and their spouses and dependent children, for enrollment in the Washington basic health plan as subsidized or nonsubsidized enrollees, to establish appropriate minimum-enrollment periods for enrollees as may be necessary, and to determine, upon application and on a reasonable schedule defined by the authority, or at the request of any enrollee, eligibility due to current gross family income for sliding scale premiums. No subsidy may be paid with respect to any enrollee whose current gross family income exceeds twice the federal poverty level or, subject to RCW 70.47.110, who is a recipient of medical assistance or medical care services under chapter 74.09 RCW. If, as a result of an eligibility review, the administrator determines that a subsidized enrollee's income exceeds twice the federal poverty level and that the enrollee knowingly failed to inform the plan of such increase in income, the administrator may bill the enrollee for the subsidy paid on the enrollee's behalf during the period of time that the enrollee's income exceeded twice the federal poverty level. If a number of enrollees drop their enrollment for no apparent good cause, the administrator may establish appropriate rules or requirements that are applicable to such individuals before they will be allowed to reenroll in the plan.

(10) To accept applications from business owners on behalf of themselves and their employees, spouses, and dependent children, as subsidized or nonsubsidized enrollees, who reside in an area served by the plan. The administrator may require all or the substantial majority of the eligible employees of such businesses to enroll in the plan and establish those procedures necessary to facilitate the orderly enrollment of groups in the plan and into a managed health care system. The administrator may require that a business owner pay at least an amount equal to what the employee pays after the state pays its portion of the subsidized premium cost of the plan on behalf of each employee enrolled in the plan. Enrollment is limited to those not eligible for medicare who wish to enroll in the plan and choose to obtain the basic health care coverage and services from a managed care system participating in the plan. The administrator shall adjust the amount determined to be due on behalf of or from all such enrollees whenever the amount negotiated by the administrator with the participating managed health care system or systems is modified or the administrative cost of providing the plan to such enrollees changes.

(11) To determine the rate to be paid to each participating managed health care system in return for the provision of covered basic health care services to enrollees in the system. Although the schedule of covered basic health care services will be the same for similar enrollees, the rates negotiated with participating managed health care systems may vary among the systems. In negotiating rates with participating systems, the administrator shall consider the characteristics of the populations served by the respective systems, economic circumstances of the local area, the need to conserve the resources of the basic health plan trust account, and other factors the administrator finds relevant.

(12) To monitor the provision of covered services to enrollees by participating managed health care systems in order to assure enrollee access to good quality basic health care, to require periodic data reports concerning the utilization of health care services rendered to enrollees in order to provide adequate information for evaluation, and to inspect the books and records of participating managed health care systems to assure compliance with the purposes of this chapter. In requiring reports from participating managed health care systems, including data on services rendered enrollees, the administrator shall endeavor to minimize costs, both to the managed health care systems and to the plan. The administrator shall coordinate any such reporting requirements with other state agencies, such as the insurance commissioner and the department of health, to minimize duplication of effort.

(13) To evaluate the effects this chapter has on private employer-based health care coverage and to take appropriate measures consistent with state and federal statutes that will discourage the reduction of such coverage in the state.

(14) To develop a program of proven preventive health measures and to integrate it into the plan wherever possible and consistent with this chapter.

(15) To provide, consistent with available funding, assistance for rural residents, underserved populations, and persons of color.

NEW SECTION. Sec. 3. A new section is added to chapter 70.47 RCW to read as follows:

The authority shall establish a health care savings account and catastrophic insurance pilot project for a four-year period to be offered to nonsubsidized enrollees in a basic health plan model. To the extent possible, the covered services should be similar to those in the basic health plan offered to nonsubsidized enrollees not participating in the pilot project. Requirements on eligibility, enrollee financial participation, and account management and use may be similar to the provisions of the federal medical savings account program of the federal health insurance portability and accountability act of 1996 (Part C, Title III, section 301), as amended. The authority shall contract with an actuarial firm to develop the pilot project. The firm must have extensive knowledge of the operations of health care savings accounts coverage and must have performed actuarial analyses for, at least, one hundred million dollars of health care savings account coverage and programs. The authority shall offer the pilot project no later than October 1, 1998. The authority shall conduct an evaluation on the pilot project's effectiveness and report its finding to the appropriate committees of the legislature by December 31, 2001. Except for start-up costs including program development and procurement, the full cost of the pilot project, including administration, marketing, and evaluation, is to be incurred by enrollee premiums and no additional cost is to be incurred by the state. The authority may use grants and gifts for the purpose of supporting program development and operation.

Sec. 4. RCW 48.43.025 and 1997 c . . . s 203 (Engrossed Substitute House Bill No. 2018) are each amended to read as follows:

(1) Except as permitted in RCW 48.43.035 or otherwise specified in this section ((and in RCW 48.43.035)):

(a) No carrier may reject an individual for health plan coverage based upon preexisting conditions of the individual.

(b) No carrier may deny, exclude, or otherwise limit coverage for an individual's preexisting health conditions; except that a carrier may impose a three-month benefit waiting period for preexisting conditions for which medical advice was given, or for which a health care provider recommended or provided treatment within three months before the effective date of coverage.

(c) Every health carrier offering any individual health plan to any individual must allow open enrollment to eligible applicants into all individual health plans offered by the carrier during the full months of July and August of each year. The individual health plans exempt from guaranteed continuity under RCW 48.43.035(4) are exempt from this requirement. All applications for open enrollment coverage must be complete and postmarked to or received by the carrier in the months of July or August in any year following July 27, 1997. Coverage for these applicants must begin the first day of the next month subject to receipt of timely payment consistent with the terms of the policies.

(d) At any time other than the open enrollment period specified in (c) of this subsection, a carrier may either decline to accept an applicant for enrollment or apply to such applicant's coverage a preexisting condition benefit waiting period not to exceed the amount of time remaining until the next open enrollment period, or three months, whichever is greater, provided that in either case all of the following conditions are met:

(i) The applicant has not maintained coverage as required in (f) of this subsection;

(ii) The applicant is not applying as a newly eligible dependent meeting the requirements of (g) of this subsection; and

(iii) The carrier uses uniform health evaluation criteria and practices among all individual health plans it offers.

(e) If a carrier exercises the options specified in (d) of this subsection it must advise the applicant in writing within ten business days of such decision. Notice of the availability of Washington state health insurance pool coverage and a brochure outlining the benefits and exclusions of the Washington state health insurance pool policy or policies must be provided in accordance with RCW 48.41.180 to any person rejected for individual health plan coverage, who has had any health condition limited or excluded through health underwriting or who otherwise meets requirements for notice in chapter 48.41 RCW. Provided timely and complete application is received by the pool, eligible individuals shall be enrolled in the Washington state health insurance pool in an expeditious manner as determined by the board of directors of the pool.

(f) A carrier may not refuse enrollment at any time based upon health evaluation criteria to otherwise eligible applicants who have been covered for any part of the three-month period immediately preceding the date of application for the new individual health plan under a comparable group or individual health benefit plan with substantially similar benefits. For purposes of this subsection, in addition to provisions in RCW 48.43.015, the following publicly administered coverage shall be considered comparable health benefit plans: The basic health plan established by chapter 70.47 RCW; the medical assistance program established by chapter 74.09 RCW; and the Washington state health insurance pool, established by chapter 48.41 RCW, as long as the person is continuously enrolled in the pool until the next open enrollment period. If the person is enrolled in the pool for less than three months, she or he will be credited for that period up to three months.

(g) A carrier must accept for enrollment all newly eligible dependents of an enrollee for enrollment onto the enrollee's individual health plan at any time of the year, provided application is made within sixty-three days of eligibility, or such longer time as provided by law or contract.

(h) At no time are carriers required to accept for enrollment any individual residing outside the state of Washington, except for qualifying dependents who reside outside the carrier service area.

(2) No carrier may avoid the requirements of this section through the creation of a new rate classification or the modification of an existing rate classification. A new or changed rate classification will be deemed an attempt to avoid the provisions of this section if the new or changed classification would substantially discourage applications for coverage from individuals or groups who are higher than average health risks. The provisions of this section apply only to individuals who are Washington residents.

Sec. 5. RCW 48.43.035 and 1997 c . . . s 204 (Engrossed Substitute House Bill No. 2018) are each amended to read as follows:

(1) Except as permitted in RCW 48.43.025 or otherwise specified in this section ((and in RCW 48.43.025)), every health carrier shall accept for enrollment any state resident within the carrier's service area and provide or assure the provision of all covered services regardless of age, sex, family structure, ethnicity, race, health condition, geographic location, employment status, socioeconomic status, other condition or situation, or the provisions of RCW 49.60.174(2). The insurance commissioner may grant a temporary exemption from this subsection, if, upon application by a health carrier the commissioner finds that the clinical, financial, or administrative capacity to serve existing enrollees will be impaired if a health carrier is required to continue enrollment of additional eligible individuals.

(2) Except as provided in subsection (6) of this section, all health plans shall contain or incorporate by endorsement a guarantee of the continuity of coverage of the plan. For the purposes of this section, a plan is "renewed" when it is continued beyond the earliest date upon which, at the carrier's sole option, the plan could have been terminated for other than nonpayment of premium. In the case of group plans, the carrier may consider the group's anniversary date as the renewal date for purposes of complying with the provisions of this section.

(3) The guarantee of continuity of coverage required in health plans shall not prevent a carrier from canceling or nonrenewing a health plan for:

(a) Nonpayment of premium;

(b) Violation of published policies of the carrier approved by the insurance commissioner;

(c) Covered persons entitled to become eligible for medicare benefits by reason of age who fail to apply for a medicare supplement plan or medicare cost, risk, or other plan offered by the carrier pursuant to federal laws and regulations;

(d) Covered persons who fail to pay any deductible or copayment amount owed to the carrier and not the provider of health care services;

(e) Covered persons committing fraudulent acts as to the carrier;

(f) Covered persons who materially breach the health plan;

(g) Change or implementation of federal or state laws that no longer permit the continued offering of such coverage; or

(h) Cessation of a plan in accordance with subsection (5) or (7) of this section.

(4) The provisions of this section do not apply in the following cases:

(a) A carrier has zero enrollment on a product;

(b) A carrier replaces a product and the replacement product is provided to all covered persons within that class or line of business, includes all of the services covered under the replaced product, and does not significantly limit access to the kind of services covered under the replaced product. The health plan may also allow unrestricted conversion to a fully comparable product; or

(c) A carrier is withdrawing from a service area or from a segment of its service area because the carrier has demonstrated to the insurance commissioner that the carrier's clinical, financial, or administrative capacity to serve enrollees would be exceeded.

(5) A health carrier may discontinue or materially modify a particular health plan, only if:

(a) The health carrier provides notice to each covered person or group provided coverage of this type of such discontinuation or modification at least ninety days prior to the date of the discontinuation or modification of coverage;

(b) The health carrier offers to each covered person or group provided coverage of this type the option to purchase any other health plan currently being offered by the health carrier to similar covered persons in the market category and geographic area; and

(c) In exercising the option to discontinue or modify a particular health plan and in offering the option of coverage under (b) of this subsection, the health carrier acts uniformly without regard to any health-status related factor of covered persons or persons who may become eligible for coverage.

(6) The provisions of this section do not apply to health plans deemed by the insurance commissioner to be unique or limited or have a short-term purpose, after a written request for such classification by the carrier and subsequent written approval by the insurance commissioner.

(7) A health carrier may discontinue all health plan coverage in one or more of the following lines of business:

(a)(i) Individual; or

(ii)(A) Small group (1-50 eligible employees); and

(B) Large group (51+ eligible employees);

(b) Only if:

(i) The health carrier provides notice to the office of the insurance commissioner and to each person covered by a plan within the line of business of such discontinuation at least one hundred eighty days prior to the expiration of coverage; and

(ii) All plans issued or delivered in the state by the health carrier in such line of business are discontinued, and coverage under such plans in such line of business is not renewed; and

(iii) The health carrier may not issue any health plan coverage in the line of business and state involved during the five-year period beginning on the date of the discontinuation of the last health plan not so renewed.

(8) The portability provisions of RCW 48.43.015 continue to apply to all enrollees whose health insurance coverage is modified or discontinued pursuant to this section.

(9) Nothing in this section modifies a health carrier's responsibility to offer the basic health plan model plan as required by RCW 70.47.060(2)(d).

Sec. 6. RCW 48.41.060 and 1997 c . . . s 211 (Engrossed Substitute House Bill No. 2018) are each amended to read as follows:

The board shall have the general powers and authority granted under the laws of this state to insurance companies, health care service contractors, and health maintenance organizations, licensed or registered to offer or provide the kinds of health coverage defined under this title. In addition thereto, the board may:

(1) Enter into contracts as are necessary or proper to carry out the provisions and purposes of this chapter including the authority, with the approval of the commissioner, to enter into contracts with similar pools of other states for the joint performance of common administrative functions, or with persons or other organizations for the performance of administrative functions;

(2) Sue or be sued, including taking any legal action as necessary to avoid the payment of improper claims against the pool or the coverage provided by or through the pool;

(3) Establish appropriate rates, rate schedules, rate adjustments, expense allowances, agent referral fees, claim reserve formulas and any other actuarial functions appropriate to the operation of the pool. Rates shall not be unreasonable in relation to the coverage provided, the risk experience, and expenses of providing the coverage. Rates and rate schedules may be adjusted for appropriate risk factors such as age and area variation in claim costs and shall take into consideration appropriate risk factors in accordance with established actuarial underwriting practices consistent with Washington state small group plan rating requirements under RCW ((48.20.028, 48.44.022, and 48.46.064)) 48.44.023 and 48.46.066;

(4) Assess members of the pool in accordance with the provisions of this chapter, and make advance interim assessments as may be reasonable and necessary for the organizational or interim operating expenses. Any interim assessments will be credited as offsets against any regular assessments due following the close of the year;

(5) Issue policies of health coverage in accordance with the requirements of this chapter;

(6) Appoint appropriate legal, actuarial and other committees as necessary to provide technical assistance in the operation of the pool, policy, and other contract design, and any other function within the authority of the pool; and

(7) Conduct periodic audits to assure the general accuracy of the financial data submitted to the pool, and the board shall cause the pool to have an annual audit of its operations by an independent certified public accountant.

Sec. 7. RCW 48.41.030 and 1997 c . . . (Engrossed Substitute House Bill No. 2018) s 210 are each amended to read as follows:

HEALTH INSURANCE POOL--DEFINITIONS. As used in this chapter, the following terms have the meaning indicated, unless the context requires otherwise:

(1) "Accounting year" means a twelve-month period determined by the board for purposes of record-keeping and accounting. The first accounting year may be more or less than twelve months and, from time to time in subsequent years, the board may order an accounting year of other than twelve months as may be required for orderly management and accounting of the pool.

(2) "Administrator" means the entity chosen by the board to administer the pool under RCW 48.41.080.

(3) "Board" means the board of directors of the pool.

(4) "Commissioner" means the insurance commissioner.

(5) "Covered Person" means any individual resident of this state who is eligible to receive benefits from any member, or other health plan.

(6) "Health care facility" has the same meaning as in RCW 70.38.025.

(((6))) (7) "Health care provider" means any physician, facility, or health care professional, who is licensed in Washington state and entitled to reimbursement for health care services.

(((7))) (8) "Health care services" means services for the purpose of preventing, alleviating, curing, or healing human illness or injury.

(((8))) (9) "Health coverage" means any group or individual disability insurance policy, health care service contract, and health maintenance agreement, except those contracts entered into for the provision of health care services pursuant to Title XVIII of the Social Security Act, 42 U.S.C. Sec. 1395 et seq. The term does not include short-term care, long-term care, dental, vision, accident, fixed indemnity, disability income contracts, civilian health and medical program for the uniform services (CHAMPUS), 10 U.S.C. 55, limited benefit or credit insurance, coverage issued as a supplement to liability insurance, insurance arising out of the worker's compensation or similar law, automobile medical payment insurance, or insurance under which benefits are payable with or without regard to fault and which is statutorily required to be contained in any liability insurance policy or equivalent self-insurance.

(((9))) (10) "Health plan" means any arrangement by which persons, including dependents or spouses, covered or making application to be covered under this pool, have access to hospital and medical benefits or reimbursement including any group or individual disability insurance policy; health care service contract; health maintenance agreement; uninsured arrangements of group or group-type contracts including employer self-insured, cost-plus, or other benefit methodologies not involving insurance or not governed by Title 48 RCW; coverage under group-type contracts which are not available to the general public and can be obtained only because of connection with a particular organization or group; and coverage by medicare or other governmental benefits. This term includes coverage through "health coverage" as defined under this section, and specifically excludes those types of programs excluded under the definition of "health coverage" in subsection (((8))) (9) of this section.

(((10))) (11) "Medical assistance" means coverage under Title XIX of the federal Social Security Act (42 U.S.C., Sec. 1396 et seq.) and chapter 74.09 RCW.

(((11))) (12) "Medicare" means coverage under Title XVIII of the Social Security Act, (42 U.S.C. Sec. 1395 et seq., as amended).

(((12))) (13) "Member" means any commercial insurer which provides disability insurance, any health care service contractor, and any health maintenance organization licensed under Title 48 RCW. "Member" shall also mean, as soon as authorized by federal law, employers and other entities, including a self-funding entity and employee welfare benefit plans that provide health plan benefits in this state on or after May 18, 1987. "Member" does not include any insurer, health care service contractor, or health maintenance organization whose products are exclusively dental products or those products excluded from the definition of "health coverage" set forth in subsection (((8))) (9) of this section.

(((13))) (14) "Network provider" means a health care provider who has contracted in writing with the pool administrator to accept payment from and to look solely to the pool according to the terms of the pool health plans.

(((14))) (15) "Plan of operation" means the pool, including articles, by-laws, and operating rules, adopted by the board pursuant to RCW 48.41.050.

(((15))) (16) "Point of service plan" means a benefit plan offered by the pool under which a covered person may elect to receive covered services from network providers, or nonnetwork providers at a reduced rate of benefits.

(((16))) (17) "Pool" means the Washington state health insurance pool as created in RCW 48.41.040.

(((17))) (18) "Substantially equivalent health plan" means a "health plan" as defined in subsection (((9))) (10) of this section which, in the judgment of the board or the administrator, offers persons including dependents or spouses covered or making application to be covered by this pool an overall level of benefits deemed approximately equivalent to the minimum benefits available under this pool.

Sec. 8. RCW 70.47.120 and 1987 1st ex.s. c 5 s 14 are each amended to read as follows:

In addition to the powers and duties specified in RCW 70.47.040 and 70.47.060, the administrator has the power to enter into contracts for the following functions and services:

(1) With public or private agencies, to assist the administrator in her or his duties to design or revise the schedule of covered basic health care services, and/or to monitor or evaluate the performance of participating managed health care systems.

(2) With public or private agencies, to provide technical or professional assistance to health care providers, particularly public or private nonprofit organizations and providers serving rural areas, who show serious intent and apparent capability to participate in the plan as managed health care systems.

(3) With public or private agencies, including health care service contractors registered under RCW 48.44.015, and doing business in the state, for marketing and administrative services in connection with participation of managed health care systems, enrollment of enrollees, billing and collection services to the administrator, and other administrative functions ordinarily performed by health care service contractors, other than insurance. Any activities of a health care service contractor pursuant to a contract with the administrator under this section shall be exempt from the provisions and requirements of Title 48 RCW except that persons appointed or authorized to solicit applications for enrollment in the basic health plan shall comply with chapter 48.17 RCW.

Sec. 9. RCW 70.47.130 and 1994 c 309 s 6 are each amended to read as follows:

(1) The activities and operations of the Washington basic health plan under this chapter, including those of managed health care systems to the extent of their participation in the plan, are exempt from the provisions and requirements of Title 48 RCW((, except as provided in RCW 70.47.070 and that the premium and prepayment tax imposed under RCW 48.14.0201 shall apply to amounts paid to a managed health care system by the basic health plan for participating in the basic health plan and providing health care services for nonsubsidized enrollees in the basic health plan)) except:

(a) Benefits as provided in RCW 70.47.070;

(b) Persons appointed or authorized to solicit applications for enrollment in the basic health plan, including employees of the health care authority, must comply with chapter 48.17 RCW. For purposes of this subsection (1)(b), "solicit" does not include distributing information and applications for the basic health plan and responding to questions; and

(c) Amounts paid to a managed health care system by the basic health plan for participating in the basic health plan and providing health care services for nonsubsidized enrollees in the basic health plan must comply with RCW 48.14.0201.

(2) The purpose of the 1994 amendatory language to this section in chapter 309, Laws of 1994 is to clarify the intent of the legislature that premiums paid on behalf of nonsubsidized enrollees in the basic health plan are subject to the premium and prepayment tax. The legislature does not consider this clarifying language to either raise existing taxes nor to impose a tax that did not exist previously.

NEW SECTION. Sec. 10. Sections 1 and 2 of this act are necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and take effect July 1, 1997."

On page 1, line 1 of the title, after "plan;" strike the remainder of the title and insert "amending RCW 70.47.015, 48.43.025, 48.43.035, 48.41.060, 48.41.030, 70.47.120, and 70.47.130; reenacting and amending RCW 70.47.060; adding a new section to chapter 70.47 RCW; providing an effective date; and declaring an emergency.", and that the bill do pass as recommended by the Conference Committee.

Signed by Senators Deccio, West; Representatives Huff, Backlund.

MOTION

Senator Johnson moved that the Senate do adopt the Report of the Conference Committee on Substitute House Bill No. 2279.

POINT OF ORDER

Senator Fairley: "Thank you, Mr. President. I raise the point of order that the amendment proposed by the Conference Committee changes the scope and object of the bill. The bill, as passed by the Senate and the House, addressed certain requirements as to training and appointment processes for agents selling the basic health plan and talked about the benefits, under the basic health plan. However, Section 3 of the Conference Committee Report is actually a separate bill that went through and it requires the Health Care Authority to establish a health care savings account pilot project. Accordingly, I believe that changes the scope and object--by this amendment."

Debate ensued.

WITHDRAWAL OF MOTION

On motion of Senator Fairley, and there being no objection, the point of order on the scope and object of the Conference Committee amendments was withdrawn.

WITHDRAWAL OF MOTION

On motion of Senator Johnson, and there being no objection, the motion to adopt the Report of the Conference Committee on Substitute House Bill No. 2279 was withdrawn.

MOTIONS

On motion of Senator West, the Report of the Conference Committee on Substitute House Bill No. 2279 was not adopted.

On motion of Senator West, the Report of the Conference Committee on Substitute House Bill No. 2279 was returned to the Conference Committee with instructions.

MOTION

On motion of Senator Johnson, the Senate advanced to the eighth order of business.

MOTION

On motion of Senator Kohl, the following resolution was adopted:

SENATE RESOLUTION 1997-8639

By Senators Kohl, Zarelli, Jacobsen, Wood, Finkbeiner, Prince, Winsley, Hale, Swecker, Kline, Fairley, Spanel, Thibaudeau, Goings, McAuliffe, Sheldon, Snyder, Prentice, Wojahn, Brown, Patterson, Fraser, Loveland, Heavey, Horn, Franklin, Hargrove, Swanson and Rasmussen

WHEREAS, The Seattle Reign is the first professional womens' basketball team in the state of Washington; and

WHEREAS, The Seattle Reign is one of eight teams of the American Basketball League, the premier womens' basketball league in the United States, that has just completed its first season; and

WHEREAS, The Seattle Reign is composed of ten women from around the nation, two of whom are former University of Washington basketball players - Tara Davis and Rhonda Smith - and two of whom are Olympic gold medalists - Venus Lacy and Cindy Brown. Kate Starbird, just graduating from Stanford University, Washington resident and college basketball’s female player of the year, has just signed with the Seattle Reign for next season; and

WHEREAS, The Seattle Reign women provide a vital and necessary contribution to the state of Washington by serving as positive role models and mentors for girls and boys throughout the state; and

WHEREAS, The Seattle Reign players and coaches continue to be active throughout the community by visiting schools and speaking to local groups; and

WHEREAS, The Seattle Reign and the American Basketball League are committed to five key principles: providing affordable family entertainment, giving back to the community through community service, serving as positive role models, being accessible to fans, and providing high-quality, competitive basketball games;

NOW, THEREFORE, BE IT RESOLVED, That the Senate recognize and express its appreciation for the accomplishments, dedication, spirit, and hard work of the players and coaches of the Seattle Reign; and

BE IT FURTHER RESOLVED, That copies of this resolution be immediately transmitted by the Secretary of the Senate to the Seattle Reign players and coaches.

Senators Kohl and Thibaudeau spoke to Senate Resolution 1997-8639.

INTRODUCTION OF SPECIAL GUESTS

The President welcomed and introduced the members of the Seattle Reign basketball team, who were seated in the gallery.

MOTION

At 3:42 p.m., on motion of Senator Johnson, the Senate adjourned until 9:00 a.m., Saturday, April 26, 1997.

BRAD OWEN, President of the Senate

MIKE O'CONNELL, Secretary of the Senate