Bill Summary – FastDemocracy

Z-0555.1
                               SENATE BILL 5898
     State of Washington       68th Legislature       2024 Regular Session
     By Senators Van De Wege, Keiser, and Nobles; by request of Department
     of Social and Health Services
     Prefiled 12/21/23. Read first time 01/08/24.    Referred to Committee
     on Labor & Commerce.
     AN ACT Relating to clarifying employment standards for long-term
 care individual providers; amending RCW 49.46.800, 74.39A.009, and
 74.39A.500; and creating a new section.
 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
     Sec. 1. RCW 49.46.800 and 2017 c 2 s 6 are each amended to read
 as follows:
     (1) ((Beginning January 1, 2017, all)) All existing rights and
 remedies available under state or local law for enforcement of the
 minimum wage shall be applicable to enforce all of the rights
 established under chapter 2, Laws of 2017.
     (2) ((The)) (a) If the department of social and health services
 contracts with an individual provider for personal care services or
 respite care services, the state shall pay individual providers, as
 defined in RCW 74.39A.240, in accordance with the minimum wage,
 overtime, and paid sick leave requirements of this chapter, except as
 provided in subsection (4) of this section.
     (b) A consumer directed employer contracting with the state is an
 employer of individual providers for the purposes of this chapter.
 Individual providers are employees of the consumer directed employer.
     (c) Neither the department of social and health services nor the
 consumer directed employer may avail itself of any state law minimum
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 wage or overtime exemption, except as provided in subsection (4) of
 this section.
     (3) The definitions in this subsection apply to this section:
     (a) "Authorized hours" means the number of paid hours of care
 included in the client's plan of care as determined by the department
 of social and health services.
     (b) "Client" has the same meaning as in RCW 74.39A.009.
     (c) "Consumer directed employer" has the same meaning as in RCW
 74.39A.009.
     (d) "Family member" includes, but is not limited to, a parent,
 child, sibling, aunt, uncle, niece, nephew, cousin, grandparent,
 grandchild, grandniece, grandnephew, or such relatives when related
 by marriage, adoption, or domestic partnership.
     (e) "Household member" means an individual provider who lives
 with the client and did so before the employment relationship between
 the client and individual provider began.
     (f) "Individual provider" has the same meaning as in RCW
 74.39A.240.
     (g) "Personal care services" has the same meaning as in RCW
 74.39A.009.
     (4)(a) Hours worked by an individual provider in excess of the
 number of authorized hours in the client's plan of care are not
 compensable if:
     (i) The individual provider is a family member or household
 member of the client, as defined by this section; and
     (ii) The client's plan of care is reasonable.
     (b) This subsection (4) does not apply to hours worked to address
 temporary emergencies or an unexpected health or safety event of the
 client that cannot be postponed.
     (c) A client's plan of care is reasonable under (a)(ii) of this
 subsection if all of the following are true:
     (i) The plan of care includes the same number of paid hours it
 would have if the individual provider were not a family member or
 household member of the client;
     (ii) The plan of care does not reflect unequal treatment of an
 individual provider or their client because of their familial or
 household relationship. Unequal treatment includes the plan of care
 including fewer paid hours than it would have if the client's
 individual provider were not a family or household member of the
 client; the plan of care including fewer paid hours because the
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 client's individual provider shares in the benefit of a personal care
 service or task provided to the client; the plan of care including
 fewer paid hours because the client lives in a multiclient household
 and two or more clients benefit from the same personal care service
 or task being performed; or the plan of care including fewer paid
 hours because of paid or unpaid assistance provided to a client by
 that client's paid provider; and
     (iii) The department of social and health services does not
 otherwise require an increase in the hours of unpaid services
 performed by the family or household member individual provider in
 order to reduce the number of hours of paid services.
     (d) A determination that a plan of care is reasonable for
 purposes of this section does not mean that the amount or type of
 services or paid hours to be provided are or are not appropriate for
 the client under chapter 74.39A RCW.
     (5) The department of social and health services retains its core
 responsibility to manage long-term in-home care services under
 chapters 74.39A and 74.41 RCW and its authority to set a client's
 benefit level as required by RCW 74.09.520(3). However, to limit an
 individual provider's compensable hours as described in subsection
 (4)(a) of this section, a plan of care must satisfy the requirements
 of subsection (4)(a), (b), and (c) of this section.
     (6) The director of labor and industries may adopt rules to
 implement this section.
     NEW SECTION. Sec. 2. (1) This act is curative and remedial. It
 applies retroactively and prospectively to all actions filed under
 RCW 49.46.800, regardless of when they were filed, except for the
 actions referenced in subsection (2) of this section.
     (2) Subsection (1) of this section does not apply to the
 following actions: Liang v. State of Washington, No. 20-2-02506-34
 (Thurston Cnty. Superior Court); SEIU 775 v. Washington State Dep't
 of Soc. And Health Servs., No. 97216-8 (Washington Supreme Court); or
 SEIU 775 v. Washington State Dep't of Soc. And Health Servs., No.
 99659-8 (Washington Supreme Court).
     Sec. 3.   RCW 74.39A.009 and 2022 c 255 s 5 are each amended to
 read as follows:
     The definitions in this section apply throughout this chapter
 unless the context clearly requires otherwise.
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     (1) "Adult family home" means a home licensed under chapter
 70.128 RCW.
     (2) "Adult residential care" means services provided by an
 assisted living facility that is licensed under chapter 18.20 RCW and
 that has a contract with the department under RCW 74.39A.020 to
 provide personal care services.
     (3) "Assisted living facility" means a facility licensed under
 chapter 18.20 RCW.
     (4) "Assisted living services" means services provided by an
 assisted living facility that has a contract with the department
 under RCW 74.39A.010 to provide personal care services, intermittent
 nursing services, and medication administration services; and the
 facility provides these services to residents who are living in
 private apartment-like units.
     (5) "Community residential service business" means a business
 that:
     (a) Is certified by the department of social and health services
 to provide to individuals who have a developmental disability as
 defined in RCW 71A.10.020(((5))) (6):
     (i) Group home services;
     (ii) Group training home services;
     (iii) Supported living services; or
     (iv) Voluntary placement services provided in a licensed staff
 residential facility for children;
     (b)   Has   a  contract   with  the   developmental   disabilities
 administration to provide the services identified in (a) of this
 subsection; and
     (c) All of the business's long-term care workers are subject to
 statutory or regulatory training requirements that are required to
 provide the services identified in (a) of this subsection.
     (6) "Consumer" or "client" means a person who is receiving or has
 applied for services under this chapter, including a person who is
 receiving services from an individual provider.
     (7) "Consumer directed employer" is a private entity that
 contracts with the department to be the legal employer of individual
 providers ((for purposes of performing administrative functions)).
 The consumer directed employer is patterned after the agency with
 choice model, recognized by the federal centers for medicare and
 medicaid services for financial management in consumer directed
 programs. The entity's responsibilities are described in RCW
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 74.39A.515 and throughout this chapter and include: (a) Coordination
 with the consumer, who is the individual provider's managing
 employer; (b) withholding, filing, and paying income and employment
 taxes, including workers' compensation premiums and unemployment
 taxes, for individual providers; (c) verifying an individual
 provider's qualifications; and (d) providing other administrative and
 employment-related supports. The consumer directed employer is a
 social service agency and its employees are mandated reporters as
 defined in RCW 74.34.020.
     (8) "Core competencies" means basic training topics, including
 but not limited to, communication skills, worker self-care, problem
 solving, maintaining dignity, consumer directed care, cultural
 sensitivity, body mechanics, fall prevention, skin and body care,
 long-term care worker roles and boundaries, supporting activities of
 daily living, and food preparation and handling.
     (9) "Cost-effective care" means care provided in a setting of an
 individual's choice that is necessary to promote the most appropriate
 level of physical, mental, and psychosocial well-being consistent
 with client choice, in an environment that is appropriate to the care
 and safety needs of the individual, and such care cannot be provided
 at a lower cost in any other setting. But this in no way precludes an
 individual from choosing a different residential setting to achieve
 his or her desired quality of life.
     (10) "Department" means the department of social and health
 services.
     (11) "Developmental disability" has the same meaning as defined
 in RCW 71A.10.020.
     (12) "Direct care worker" means a paid caregiver who provides
 direct, hands-on personal care services to persons with disabilities
 or the elderly requiring long-term care.
     (13) "Enhanced adult residential care" means services provided by
 an assisted living facility that is licensed under chapter 18.20 RCW
 and that has a contract with the department under RCW 74.39A.010 to
 provide personal care services, intermittent nursing services, and
 medication administration services.
     (14) "Facility" means an adult family home, an assisted living
 facility, a nursing home, an enhanced services facility licensed
 under chapter 70.97 RCW, or a facility certified to provide medicare
 or medicaid services in nursing facilities or intermediate care
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 facilities for individuals with intellectual disabilities under 42
 C.F.R. Part 483.
     (15) "Home and community-based services" means services provided
 in adult family homes, in-home services, and other services
 administered or provided by contract by the department directly or
 through contract with area agencies on aging or federally recognized
 Indian tribes, or similar services provided by facilities and
 agencies licensed or certified by the department.
     (16) "Home care aide" means a long-term care worker who is
 certified as a home care aide by the department of health under
 chapter 18.88B RCW.
     (17)   "Individual  provider"   is   defined  according   to  RCW
 74.39A.240.
     (18) "Legal employer" means the consumer directed employer, which
 along with the consumer, coemploys individual providers. The legal
 employer is responsible for setting wages and benefits for individual
 providers and must comply with applicable laws including, but not
 limited to, workers compensation and unemployment insurance laws.
     (19)   "Long-term  care"   means  care   and  supports  delivered
 indefinitely, intermittently, or over a sustained time to persons of
 any age who are functionally disabled due to chronic mental or
 physical illness, disease, chemical dependency, or a medical
 condition that is permanent, not curable, or is long-lasting and
 severely limits their mental or physical capacity for self-care. The
 use of this definition is not intended to expand the scope of
 services, care, or assistance provided by any individuals, groups,
 residential care settings, or professions unless otherwise required
 by law.
     (20)(a) "Long-term care workers" include all persons who provide
 paid, hands-on personal care services for the elderly or persons with
 disabilities, including but not limited to individual providers of
 home care services, direct care workers employed by home care
 agencies or a consumer directed employer, providers of home care
 services to persons with developmental disabilities under Title 71A
 RCW, all direct care workers in state-licensed assisted living
 facilities, enhanced services facilities, and adult family homes,
 respite care providers, direct care workers employed by community
 residential service businesses, and any other direct care worker
 providing home or community-based services to the elderly or persons
 with functional disabilities or developmental disabilities.
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     (b) "Long-term care workers" do not include: (i) Persons employed
 by the following facilities or agencies: Nursing homes licensed under
 chapter 18.51 RCW, hospitals or other acute care settings,
 residential habilitation centers under chapter 71A.20 RCW, facilities
 certified under 42 C.F.R., Part 483, hospice agencies subject to
 chapter 70.127 RCW, adult day care centers, and adult day health care
 centers; or (ii) persons who are not paid by the state or by a
 private agency or facility licensed or certified by the state to
 provide personal care services.
     (21) "Managing employer" means a consumer who coemploys one or
 more individual providers and whose responsibilities include (a)
 choosing potential individual providers and referring them to the
 consumer directed employer; (b) overseeing the day-to-day management
 and scheduling of the individual provider's tasks consistent with the
 plan of care; and (c) dismissing the individual provider when
 desired.
     (22) "Nursing home" or "nursing facility" means a facility
 licensed under chapter 18.51 RCW or certified as a medicaid nursing
 facility under 42 C.F.R. Part 483, or both.
     (23) "Person who is functionally disabled" means a person who
 because of a recognized chronic physical or mental condition or
 disease, including chemical dependency or developmental disability,
 is dependent upon others for direct care, support, supervision, or
 monitoring to perform activities of daily living. "Activities of
 daily living," in this context, means self-care abilities related to
 personal care such as bathing, eating, using the toilet, dressing,
 and transfer. Instrumental activities of daily living such as
 cooking, shopping, house cleaning, doing laundry, working, and
 managing personal finances may also be considered when assessing a
 person's functional ability to perform activities in the home and the
 community.
     (24) "Personal care services" means physical or verbal assistance
 with activities of daily living and instrumental activities of daily
 living provided because of a person's functional disability.
     (25) "Population specific competencies" means basic training
 topics unique to the care needs of the population the long-term care
 worker is serving, including but not limited to, mental health,
 dementia, developmental disabilities, young adults with physical
 disabilities, and older adults.
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     (26) "Qualified instructor" means a registered nurse or other
 person with specific knowledge, training, and work experience in the
 provision of direct, hands-on personal care and other assistance
 services to the elderly or persons with disabilities requiring
 long-term care.
     (27) "Secretary" means the secretary of social and health
 services.
     (28) "Training partnership" means a joint partnership or trust
 that includes the office of the governor and the exclusive bargaining
 representative of individual providers under RCW 74.39A.270 with the
 capacity   to   provide  training,  peer   mentoring,   and workforce
 development, or other services to individual providers.
     (29) "Tribally licensed assisted living facility" means an
 assisted living facility licensed by a federally recognized Indian
 tribe in which a facility provides services similar to services
 provided by assisted living facilities licensed under