Prepared by Leslie Emerick, Lobbyist
Legislative Overview
The 60-day short session of the Washington State Legislature ended on March 12th, 2020. It seems so long ago now, but on March 2nd I attended the Senate Ways & Means committee hearing with Secretary of Health John Wiesman requesting $100,000 million in additional funding to address the coronavirus outbreak in Washington state. The good news was that the legislature was still in session and able to address the public health crisis while they were still in Olympia. Both the Senate and the House agreed to tap the “rainy day” fund to address the funding issue and by the end of session legislators had decided to pull $200,000 out of the fund to protect public health because in the span of one week it had become even more clear that we were in a public health crisis.
My how the world has changed is the span of a few weeks…with the spread of the coronavirus, we now live in a new reality. With virus cases climbing by the day, experts say we are in for a severe pandemic that has already impacted home care providers throughout the state. Sadly, Washington state is ground zero in the United States with much of the initial outbreak stemming from a Kirkland nursing home. Since we do not have statewide testing easily available, it was hard to know early on how widespread the virus was and now it has shown up in most counties in the state. Governor Inslee has been on the forefront of asking for federal assistance and proclaiming an emergency in our state on February 27th, 2020. For more information please go to:
Department of Health: https://www.doh.wa.gov/Emergencies/Coronavirus
WA State Employment Security: https://esd.wa.gov/newsroom/covid-19
DSHS Coronavirus Alert: https://www.dshs.wa.gov/alert/covid-19-information
Bills of High Interest and Concern
Summary: Home care agencies and the Consumer Directed Employer must adopt and maintain a comprehensive written policy about how they will address instances of discrimination, abusive conduct, and challenging behavior by July 1, 2021. Abusive conduct includes workplace aggression, workplace violence, aggravated workplace violence, physical sexual aggression, rape, attempted rape, sexual contact, sexual harassment, workplace verbal aggression, or inappropriate sexual behavior. Discrimination includes existing prohibited practices and discriminatory harassment but does not include a client refusing to hire or terminate an employee based on gender preferences. Challenging behavior is behavior by a service recipient that is caused by or related to a disability that might be experienced by the employee as offensive or presenting a safety risk. The policy must:
Define discrimination, harassment, abusive conduct, and challenging behavior; describe the types of discrimination and abusive conduct covered by the policy; identify multiple people to whom an employee may report discrimination, abusive conduct, and challenging behavior; include permission and a process allowing workers to leave situations where they feel their safety is at immediate risk; include prohibition against retaliation and describe how the employer will protect employees against retaliatory behavior; provide resources for a worker to utilize; and include any additional recommendations from the training work group convened by DSHS.
The employer must review and update the policy annually and ensure that all employees are aware of the policy. The policy must be disseminated to each employee at the beginning of employment, annually, and when substantive updates occur, posted in prominent locations at the place of business, and available in English and the top three languages spoken most by long-term care workers in the state.
Prevention Plan. Beginning July 1, 2021, home care agencies and the CDE must implement a plan to prevent and protect employees from abusive conduct, assist employees working in environments with challenging behavior, and work to resolve issues impacting the provision of personal care.
A workplace safety committee consisting of employee-elected individuals, employer-selected individuals, and at least one service recipient representative, must develop and monitor the plan and review the number of miscategorizations in aggregate. If the workplace committee does not have the required number of members, the employer must document evidence showing that they were unable to get employees or service representatives to participate. A labor management committee established by a collective bargaining agreement that receives formal input from representatives of service recipients who wish to participate in the committee’s deliberations is sufficient to fulfill the requirement for a workplace safety committee. The plan should be reviewed and updated as necessary, at least every three years, and must be adjusted based on the workplace safety and employer’s annual review of incidents of discrimination and abusive conduct in the home care setting.
The plan must include processes for intervening and assisting employees affected by challenging behaviors and abusive conduct, engaging appropriate members of the care team when allegations of discrimination, abusive conduct, or challenging behaviors occur and engaging the service recipient in problem resolution. In developing the plan, the employer must consider any guidelines on violence in the workplace or in health care settings issued by the Department of Health (DOH), DSHS, L&I, the federal Occupational Safety and Health Administration, and the training work group convened by DSHS.
Informing Workers. Prior to assigning an employee to a service recipient and throughout the duration of service, home care agencies and the CDE must inform employees of instances of discrimination and abusive conduct occurring in, or around the service recipient’s home care setting, if those incidents are documented by the employer or DSHS. Prior to assigning an employee to a service recipient, home care agencies and the CDE must inform employees of a service recipient’s challenging behavior that is documented in the service recipient’s care plan, by the employer, or by DSHS and communicated to the employer. Upon request of the service recipient, an employer must provide the service recipient with a copy of the information that was communicated to the employee. Home care agencies and the CDE may not terminate, reduce pay, or not offer future assignments to an employee for requesting reassignment due to alleged discrimination, abusive conduct, or challenging behavior.
Recordkeeping. Home care agencies and the CDE must keep a record of any reported incidents of discrimination or abusive conduct experienced by an employee while providing home care services. The records must be kept for at least five years and made available for inspection by L&I. Anonymized aggregate data of the reported incidents must be made available to the training work group. If the employer makes its records available to the exclusive bargaining representative representing the employer’s employees, the exclusive bargaining representative my assess whether the employer is meeting the data collection requirements. L&I must take into consideration this assessment when determining compliance with recordkeeping. The records must include certain information about the incident including: the employer’s name and address; the date, time, and location of where the incident occurred; the reporting method; the person who experienced the act; a description of the person committing the act and the type of act; and a description of the actions taken by the employee and employer in response to the act and how the incident was resolved. The employer must correct any miscategorizations of instances as discrimination, abusive conduct or challenging behavior.
Training Work Group. DSHS must convene a stakeholder work group recommending policy changes and best practices for training employers, long-term care workers, and service recipients to keep home care settings free from discrimination and abusive conduct while maintaining the ability for individuals who need services to access these services and maintaining the ability to provide services. The work group must include:
Representatives from DSHS, L&I, HRC, home care agencies and the CDE, labor organizations representing employees, disability advocacy organizations, and area agencies on aging; organizations with at least five years of experience training at least 10,000 long-term care workers; service recipients; a family member or guardian of a service recipient; the self-advocacy community; and subject matter experts deemed necessary by the work group.
The work group must consider specific items in developing their recommendations and report its training recommendations to the Legislature by December 1, 2021. The report must also address issues regarding the continuation of collecting and reviewing data, the future role of the work group, and how the work group measures the efficacy of its recommendations.
Enforcement. L&I is authorized to investigate home care agencies and the CDE to ensure compliance with the policy, prevention plan, informing workers, retaliation, and recordkeeping requirements. Employers that are found to be non-compliant by L&I, must be subjected to citations under the Washington Industrial Safety and Health Act. Votes on Final Passage: Senate 37 11 House 74 23 (House amended) Senate 40 9 (Senate concurred)
Effective: Ninety days after adjournment of session in which bill is passed. (Session ended March 12, 2020/Effective June 10, 2020)
ESSB 6492 Workforce Surcharge replaced the Workforce Surcharge bill from 2019. There were accounting problems with the original bill that passed last session, so they had to go back in and fix it in a hurry this session before any taxes were actually collected. Many people got letters for DOH stating that the implementation of the bill was on hold. The new bill was signed by the Governor on February 7, effective February 10, 2020. Just goes to show you that the legislature can move fast when they want to!
Summary: Except for certain advanced computing businesses, the workforce education investment surcharge is eliminated and replaced with an increase in the B&O service rate from 1.5 percent to 1.75 percent for businesses earning more than $1 million annually in the preceding calendar year. Businesses conducting service activities, but not meeting the $1 million threshold, continue to pay B&O tax at the 1.5 percent rate. Hospitals are excluded from the increase. For the purpose of determining whether a business has met the $1 million threshold, the income of any affiliates of the business is also included in the calculation. An affiliate is any business that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with another business.
HB 2380 – Changing the home care agency vendor rate and repealing electronic timekeeping.
Summary: Allows the home care agency vendor rate calculation to reflect the average home care agency employer tax rate. Adds employer premiums for the state Paid Family and Medical Leave Act to the premiums addressed in the home care agency vendor rate calculation. Clarifies language in how rate parity between home care agencies and individual providers of home care services relates to changes in benefits. Repeals electronic timekeeping requirements that are inconsistent with federal law.
Please see the attached bill tracking report for the remaining bills that passed this session!
Department of Health Issues
The next Department of Health (DOH) In-Home Services Roundtable will be April 23, 2020. Home care, home health, and hospice agency representatives and other interested parties are encouraged to attend. The purpose of these meetings is to provide agencies an opportunity to meet with DOH staff, to receive licensing, survey, and industry related information and updates, to have the opportunity to ask questions / raise concerns, and to collaborate with colleagues. The Roundtable will be held at the following address:
- Department of Health, Town Center Two, 111 Israel Rd SE (room 166) Tumwater, WA
- Roundtable – 9:00 to 11:00am
Visitor parking is available in front of the main DOH buildings as well as the parking structure. You can park in any space that is not marked for special purposes. An agenda will be sent out prior to the April 23rd Roundtable. A call-in option will also be available for those who cannot attend in person.
Contact In-Home Services program manager if you have any questions at [email protected].
| Long-Term Care Workforce Development Steering Committee: Julie Ferguson, WAHCA member and I have been regularly attending the workgroup meetings of the Curriculum and Testing Committees for reviewing and assessing what would be in a core curriculum for all types of certified nursing assistants and have been participating in monthly workgroup meetings. The committee I am on is reviewing potential curriculum for CNA’s that would be transferable to many environments. A good example of a unit that we are currently reviewing is: Infection Control Introduction: Because of the significant direct care they provide, nursing assistants play a critical role in preventing and responding to infection to support the health and wellness of the people they care for as well as themselves, their loved ones, co-workers, and the community generally. Background: In 2019, the legislature re-convened the Nursing Care Quality Assurance Commission (NCQAC) LTC Workforce committee to address key recommendations by providing detailed plans to improve availability and use of workforce-related data and make updates and revisions to training, and testing. The legislature also directed the committee to develop recommendations for skilled nursing facility staffing models and address deficiencies in resident care. Palliative Care Roadmap: We have had a number of meetings editing the “PC roadmap”, with DOH staff to review and sort the compiled information that was gathered at the first big meeting. Shawn D’Amelio attended the first meeting where they took broad feedback for the larger workgroup and will be part of the broader review as we narrow down the content to more manageable levels. As you may remember, we had excellent representation from across the state with many different types of palliative care providers and experts at the table for the initial source of content for the booklet. The booklet will be very similar to the Dementia Roadmap published by DSHS a few years ago. It is to be used as a resource for patients, their families and practitioners when a patient has been diagnosed with a serious or life-threatening illness. Hard copies must be available for distribution no later than September 30, 2020. More to come! Palliative Care-Rural Health Integration Advisory Team (PC-RHIAT): This is an ongoing workgroup thatI am involved in. I am on the advisory team for the Community Engagement Workgroup. To learn more about the Washington Rural Palliative Care Initiative please visit : https://waportal.org/partners/home/washington-rural-palliative-care-initiative |
Labor and Industries Issues
Just areminder that House Bill 1931: Concerning workplace violence in health care settings, which passed last session impacting in-home services agencies licensed under RCW 70.127. It requires workforce violence prevention planning and training for hospitals, including in-home services providers under RCW 70.127. See the WA State Hospital Association article below:
DSHS Issues
Long-Term Care Trust Act Implementation: This will be an ongoing issue over the next few years as it is implemented.Provides benefits for long-term services and supports to qualified individuals who need assistance with at least three activities of daily living. Establishes eligibility requirements for the Trust Program for persons who pay a premium of 0.58 percent of $100 (a little over a nickel) of a person’s wages for a specific amount of time. Here is a good fact sheet on the impacts of the bill: https://www.agingwashington.org/files/2019/02/2019-Long-Term-Care-Trust-Act-Factsheet.pdf
Consumer Directed Employer (CDE): will establish a contract between the Department of Social and Health Services and Consumer Direct of Washington (CDWA) to become the Consumer Directed Employer. This entity will serve as the employer for Individual Providers of in-home personal care and respite in Washington state. When the Consumer Directed Employer contract goes into effect, CDWA will handle the credentialing, payroll and other employer responsibilities currently managed by the Aging and Long-Term Support Administration, Developmental Disabilities Administration and the Area Agencies on Aging. Consumers will continue to select, schedule, supervise, and dismiss their Individual Providers. To learn more visit the CDE webpage. Please see the Questions and Answers page for additional details and background information.