SB 5331 — Concerning long-term services and supports.

S-1149.1SUBSTITUTES-0374.1SENATE SENATE BILL 5331State of Washington66th Legislature2019 Regular SessionBySenateSessionBySenators Health & Long Term Care (originally sponsored by Senators Palumbo, Honeyford, Cleveland, Walsh, Randall, King, Frockt, Billig, Conway, Dhingra, Keiser, Kuderer, Pedersen, Saldaña, and Warnick)READWarnickRead FIRSTfirst TIMEtime 01/31/19.AN01/17/19.Referred to Committee on Health & Long Term Care.AN ACT Relating to long-term services and supports;

adding a new section to chapter 44.28 RCW;

The definitions in this section apply throughout this chapter unless the context clearly requires otherwise.(1) "Account" means the long-term services and supports trust account created in section 10 of this act.(2) "Approved service" means long-term services and supports including, but not limited to:(a) Adult day services;(b) Care transition coordination;(c) Memory care;(d) Adaptive equipment and technology;(e) Environmental modification;(f) Personal emergency response system;(g) Home safety evaluation;(h) Respite for family caregivers;(i) Home delivered meals;(j) Transportation;(k) Dementia supports;(l) Education and consultation;(m) EligibleEvidence-based relativeinterventions care;(n)designed Professionalto services;(o)improve Serviceshealth that assist paid and unpaidwell-being, familyincluding:(i) membersEligible caringrelative forcare;(ii) eligibleProfessional individuals, including training for individuals providing care who are not otherwise employed as long-term care workers under RCW 74.39A.074;(p) In-home personal care;(q) Assisted living services;(r) Adult family home services;

and(s)and(iii) NursingServices homethat services.(3)assist "Benefit unit" means up to one hundred dollars, increasing at a three percent index subject to annual commission approval, paid by the department of social and healthunpaid servicesfamily tomembers acaring long-term services and supports provider as reimbursement for approved services provided to an eligible beneficiaryindividuals, onincluding atraining specificfor date.(4)individuals "Commission"providing meanscare the long-term services and supports trust commission established in section 4 of this act.(5) "Eligible beneficiary" means a qualified individual who hasare beennot determinedotherwise toemployed meet the minimum level of assistance with activities of daily living necessary to receive benefits through the trust program, as establishedlong-term incare thisworkers chapter,under and who has not exhausted the lifetime limit of benefit units.(6) "Employee" has the meaning provided in RCW 50A.04.010.(7)74.39A.074;(n) "Employer"In-home haspersonal thecare;(o) meaningAssisted provided in RCW 50A.04.010.(8) "Employment" has the meaning provided in RCW 50A.04.010.(9) "Long-term services and supports provider" means an entity that meets the qualifications applicable in law to the approved service they provide, including a qualified or certified home care aide, licensed assisted living facility,services;(p) licensedAdult adult family home,home licensedservices; nursing home, licensed in-home services agency, adult day services program, vendor, instructor, qualified family member, or other entities as registered by the department of social and health services.(10) "Premium" or "premiums" means the payments required by section 8 of this act and paid to the employment security department for deposit in the account created in section 10 of this act.(11) "Program" means the long-term services and supports trust program established in this chapter.(12) "Qualified family member" means a relative of an eligible beneficiary qualified to meet requirements established in state law for the approved service they provide that would be required of any other long-term services and supports provider to receive payments from the state.(13) "Qualified individual" means an individual who meets the age, residence, and duration of payment requirements, as established in this chapter.(14) "Wages" has the meaning provided in RCW 50A.04.010, except that all wages are subject to a premium assessment and not limited by the commissioner of the employment security department, as provided under RCW 50A.04.115.NEW SECTION.  Sec.

and(q) Nursing home services.(3) "Benefit unit" means up to one hundred dollars, increasing at a three percent index subject to annual commission approval, paid by the department of social and health services to a long-term services and supports provider as reimbursement for approved services provided to an eligible beneficiary on a specific date.(4) "Commission" means the long-term services and supports trust commission established in section 4 of this act.(5) "Eligible beneficiary" means a qualified individual who has been determined to meet the minimum level of assistance with activities of daily living necessary to receive benefits through the trust program, as established in this chapter.(6)(a) "Employee" means an individual who is in the employment of an employer.(b) "Employee" does not include employees of the United States of America.(7)(a) "Employer" means:

(i) Any individual or type of organization, including any partnership, association, trust, estate, joint stock company, insurance company, limited liability company, or corporation, whether domestic or foreign, or the receiver, trustee in bankruptcy, trustee, or the legal representative of a deceased person, having any person in employment or, having become an employer, has not ceased to be an employer as provided in this chapter;

(ii) the state, state institutions, and state agencies;

and (iii) any unit of local government including, but not limited to, a county, city, town, municipal corporation, quasi-municipal corporation, or political subdivision.(b) "Employer" does not include the United States of America.(8)(a) "Employment" means personal service, of whatever nature, unlimited by the relationship of master and servant as known to the common law or any other legal relationship performed for wages or under any contract calling for the performance of personal services, written or oral, express or implied.

The term "employment" includes an individual's entire service performed within or without or both within and without this state, if:(i) The service is localized in this state;

or(ii) The service is not localized in any state, but some of the service is performed in this state;

and(A) The base of operations of the employee is in the state, or if there is no base of operations, then the place from which such service is directed or controlled is in this state;

or(B) The base of operations or place from which such service is directed or controlled is not in any state in which some part of the service is performed, but the individual's residence is in this state.(b) "Employment" does not include:(i) Services for remuneration when it is shown to the satisfaction of the commissioner of the employment security department that:(A)(I) Such individual has been and will continue to be free from control or direction over the performance of such service, both under the individual's contract of service and in fact;(II) Such service is either outside the usual course of business for which such service is performed, or that such service is performed outside of all the places of business of the enterprises for which such service is performed;

and(III) Such individual is customarily engaged in an independently established trade, occupation, profession, or business, of the same nature as that involved in the contract of service;

or(B) As a separate alternative:(I) Such individual has been and will continue to be free from control or direction over the performance of such service, both under the individual's contract of service and in fact;(II) Such service is either outside the usual course of business for which such service is performed, or that such service is performed outside of all the places of business of the enterprises for which such service is performed, or the individual is responsible, both under the contract and in fact, for the costs of the principal place of business from which the service is performed;(III) Such individual is customarily engaged in an independently established trade, occupation, profession, or business, of the same nature as that involved in the contract of service, or such individual has a principal place of business for the work the individual is conducting that is eligible for a business deduction for federal income tax purposes;(IV) On the effective date of the contract of service, such individual is responsible for filing at the next applicable filing period, both under the contract of service and in fact, a schedule of expenses with the internal revenue service for the type of business the individual is conducting;(V) On the effective date of the contract of service, or within a reasonable period after the effective date of the contract, such individual has established an account with the department of revenue, and other state agencies as required by the particular case, for the business the individual is conducting for the payment of all state taxes normally paid by employers and businesses and has registered for and received a unified business identifier number from the state of Washington;

and(VI) On the effective date of the contract of service, such individual is maintaining a separate set of books or records that reflect all items of income and expenses of the business which the individual is conducting;

or(ii) Services that require registration under chapter 18.27 RCW or licensing under chapter 19.28 RCW rendered by an individual when:(A) The individual has been and will continue to be free from control or direction over the performance of the service, both under the contract of service and in fact;(B) The service is either outside the usual course of business for which the service is performed, or the service is performed outside of all the places of business of the enterprise for which the service is performed, or the individual is responsible, both under the contract and in fact, for the costs of the principal place of business from which the service is performed;(C) The individual is customarily engaged in an independently established trade, occupation, profession, or business, of the same nature as that involved in the contract of service, or the individual has a principal place of business for the business the individual is conducting that is eligible for a business deduction for federal income tax purposes, other than that furnished by the employer for which the business has contracted to furnish services;(D) On the effective date of the contract of service, the individual is responsible for filing at the next applicable filing period, both under the contract of service and in fact, a schedule of expenses with the internal revenue service for the type of business the individual is conducting;(E) On the effective date of the contract of service, or within a reasonable period after the effective date of the contract, the individual has an active and valid certificate of registration with the department of revenue, and an active and valid account with any other state agencies as required by the particular case, for the business the individual is conducting for the payment of all state taxes normally paid by employers and businesses and has registered for and received a unified business identifier number from the state of Washington;(F) On the effective date of the contract of service, the individual is maintaining a separate set of books or records that reflect all items of income and expenses of the business that the individual is conducting;

and(G) On the effective date of the contract of service, the individual has a valid contractor registration pursuant to chapter 18.27 RCW or an electrical contractor license pursuant to chapter 19.28 RCW.(9) "Long-term services and supports provider" means an entity that meets the qualifications applicable in law to the approved service they provide, including a qualified or certified home care aide, licensed assisted living facility, licensed adult family home, licensed nursing home, licensed in-home services agency, adult day health program, vendor, instructor, qualified family member, or other entities as registered by the department of social and health services.(10) "Premium" or "premiums" means the payments required by section 8 of this act and paid to the employment security department for deposit in the account created in section 10 of this act.(11) "Program" means the long-term services and supports trust program established in this chapter.(12) "Qualified family member" means a relative of an eligible beneficiary qualified to meet requirements established in state law for the approved service they provide that would be required of any other long-term services and supports provider to receive payments from the state.(13) "Qualified individual" means an individual who meets the age, residence, and duration of payment requirements, as established in this chapter, and has not exhausted the lifetime limit of benefit units.(14) "Wages" has the same meaning as defined in RCW 50A.04.010, except that all wages are subject to a premium assessment and not limited by the commissioner of the employment security department, as provided under RCW 50A.04.115.NEW SECTION.  Sec.

and(k) Adopt rules and procedures necessary to implement and administer the activities specified in this section related to the program.(4) The employment security department shall:(a) Collect and assess employee premiums as provided in section 8 of this act;(b) Assist the commission in monitoring the solvency and financial status of the program;(c) Perform investigations to determine the compliance of premium payments in section 8 of this actact; in coordination with the same activities conducted under the family and medical leave act, chapter 50A.04 RCW, to the extent possible;

(1) The long-term services and supports trust commission is established.(2) The commission includes:(a) Two members from each of the two largest caucuses of the house of representatives, appointed by the speaker of the house of representatives;(b) Two members from each of the two largest caucuses of the senate, appointed by the president of the senate;(c) The commissioner of the employment security department, or the commissioner's designee;(d) The secretary of the department of social and health services, or the secretary's designee;(e) The director of the health care authority, or the director's designee,designee;(f) who shall serve as a nonvoting member;(f) One representative of the organization representing the area agencies on aging;(g) One representative of a home care association that represents caregivers who provide services to private pay and medicaid clients;(h) One representative of a union representing long-term care workers;(i) One representative of an organization representing retired persons;(j) One representative of an association representing skilled nursing facilities and assisted living providers;(k) One representative of an association representing adult family home providers;(l)providers; Two individuals receiving long-term services and supports, or their designees, or representatives of consumers receiving long-term services and supports under the program;(m) One member who is a worker who is, or will likely be, paying the premium established in section 8 of this act and who is not employed by a long-term services and supports provider;

and(n)and(l) OneTwo representativeindividuals ofreceiving anlong-term organizationservices ofand employerssupports, whoseor memberstheir collect,designees, or willrepresentatives likelyof beconsumers collecting,receiving thelong-term premiumservices establishedand insupports sectionunder 8the ofprogram.(3)(a) this act.(3)(a) Other than the agency heads identified in subsection (2) of this section, members of the commission are appointed for terms of two years, except that the governor shall appoint the initial members identified in subsection (2)(f) through (n)(l) of this section to staggered terms not to exceed four years.(b) The secretary of the department of social and health services, or the secretary's designee, shall serve as chair of the commission.

and(e) The preparation of regular actuarial reports on the solvency and financial status of the program.(5)program.NEW TheSECTION.  Sec. commission shall monitor agency administrative expenses over time.

Beginning November 15, 2020, the commission must annually report to the governor and the fiscal committees of the legislature on agency spending for administrative expenses and anticipated administrative expenses as the program shifts into different phases of implementation and operation.

The November 15, 2025, report must include recommendations for a method of calculating future agency administrative expenses to limit administrative expenses while providing sufficient funds to adequately operate the program.NEW SECTION.  Sec.

(1) Beginning January 1, 2025, approved services must be available and benefits payable to a registered long-term services and supports provider on behalf of a qualified individual under this section.(2) A qualified individual may receive approved services and benefits that are payable to a registered long-term services and supports provider on behalf of a qualified individual under this section if the qualified individual has been determined by the department of social and health services to require assistance with at least three activities of daily living.living.(3)(a) An eligible beneficiary may receive approved services and benefits through the program in the form of a benefit unit payable to a registered long-term services and supports provider.(b) An eligible beneficiary may not receive more than the dollar equivalent of three hundred sixty-five benefit units over the course of the eligible beneficiary's lifetime.(i) If the department of social and health services reimburses a long-term services and supports provider for approved services provided to an eligible beneficiary and the payment is less than the benefit unit, the department of social and health services shall credit the unused portion of the benefit unit to the eligible beneficiary for future use.(ii) Eligible beneficiaries may combine benefit units to receive more approved services per day as long as the total number of lifetime benefit units has not been exceeded.NEW SECTION.  Sec.

The department of social and health services must engage sufficient qualified assessor capacity, including via contract, so that the determination may be made within forty-five days from receipt of a request by a beneficiary to use a benefit.(3)(a) An eligible beneficiary may receive approved services and benefits through the program in the form of a benefit unit payable to a registered long-term services and supports provider.(b) An eligible beneficiary may not receive more than the dollar equivalent of three hundred sixty-five benefit units over the course of the eligible beneficiary's lifetime.(i) If the department of social and health services reimburses a long-term services and supports provider for approved services provided to an eligible beneficiary and the payment is less than the benefit unit, only the portion of the benefit unit that is used shall be taken into consideration when calculating the person's remaining lifetime limit on receipt of benefits.(ii) Eligible beneficiaries may combine benefit units to receive more approved services per day as long as the total number of lifetime benefit units has not been exceeded.NEW SECTION.  Sec.

The cancellation must be effective no later than thirty days from the date of the notice in writing advising the self-employed person of the cancellation.(4) Those electing coverage are considered employers or employees where the context so dictates.(5) For the purposes of this section, "independent contractor" means an individual excluded from the definition of "employment" in section 2(8)2(8)(b) of this act.(6) The employment security department shall adopt rules for determining the hours worked and the wages of individuals who elect coverage under this section and rules for enforcement of this section.NEW SECTION.  Sec.

(1) The long-term services and supports trust account is created in the custody of the state treasurer.treasury.

An appropriation is required for administrative expenses, but not for benefit payments.

Beginning December 1, 2026, and annually thereafter, and in compliance with RCW 43.01.036, the long-term services and supports trust commission mustshall report to the legislature on the program, including:(1) Projected and actual program participation;(2) Adequacy of premium rates;(3) Fund balances;(4) Benefits paid;(5) Demographic information on program participants, including age, gender, race, ethnicity, geographic distribution by county, legislative district, and employment sector;

Any benefits used by an individual under this chapter are not income or resources for any determinations of eligibility for any other state program or benefit,benefit.Sec. for medicaid, or a state-federal program.NEW SECTION.  Sec.

NothingRCW in74.39A.076 thisand chapter2018 createsc 220 s 1 are each amended to read as follows:(1) Beginning January 7, 2012, except for long-term care workers exempt from certification under RCW 18.88B.041(1)(a):(a) A biological, step, or adoptive parent who is the individual provider only for ((his or her))the person's developmentally disabled son or daughter must receive twelve hours of training relevant to the needs of adults with developmental disabilities within the first one hundred twenty days after becoming an entitlementindividual provider.(b) A spouse or registered domestic partner who is a long-term care worker only for a personspouse or domestic partner, pursuant to receive,the long-term services and supports trust program established in chapter 50A.--- RCW (the new chapter created in section 17 of this act), must receive fifteen hours of training relevant to the needs of adults with disabilities, and at least six hours of additional focused training based on the care-receiving spouse's or requirespartner's needs, within the first one hundred twenty days after becoming a statelong-term agencycare toworker.(c) provide,A caseperson managementworking as an individual provider who (i) provides respite care services including,only butfor notindividuals limitedwith to,developmental casedisabilities managementreceiving services under chapterTitle 74.39A71A RCW.NEWRCW SECTION.  Sec.or only for individuals who receive services under this chapter, and (ii) works three hundred hours or less in any calendar year, must complete fourteen hours of training within the first one hundred twenty days after becoming an individual provider.

16.

A new section is added to chapter 44.28 RCW to read as follows:By December 1, 2032, the joint legislative audit and review committee must report on the performance of the long-term services and supports trust commission established in section 4 of this act in providing oversight to the long-term services and supports trust program and make recommendations to the legislature on ways to improve the functioning, efficiency, and membership, as well as whether the long-term services and supports trust commission should continue to exist or should expire.Sec.

17.

RCW 74.39A.076 and 2018 c 220 s 1 are each amended to read as follows:(1) Beginning January 7, 2012, except for long-term care workers exempt from certification under RCW 18.88B.041(1)(a):(a) A biological, step, or adoptive parent who is the individual provider only for ((his or her))the person's developmentally disabled son or daughter must receive twelve hours of training relevant to the needs of adults with developmental disabilities within the first one hundred twenty days after becoming an individual provider.(b) A spouse or registered domestic partner who is a long-term care worker only for a spouse or domestic partner, pursuant to the long-term services and supports trust program established in chapter 50A.--- RCW (the new chapter created in section 19 of this act), must receive fifteen hours of basic training, and at least six hours of additional focused training based on the care-receiving spouse's or partner's needs, within the first one hundred twenty days after becoming a long-term care worker.(c) A person working as an individual provider who (i) provides respite care services only for individuals with developmental disabilities receiving services under Title 71A RCW or only for individuals who receive services under this chapter, and (ii) works three hundred hours or less in any calendar year, must complete fourteen hours of training within the first one hundred twenty days after becoming an individual provider.

18.16.

RCW 18.88B.041 and 2015 c 152 s 1 are each amended to read as follows:(1) The following long-term care workers are not required to become a certified home care aide pursuant to this chapter:(a)(i)(A) Registered nurses, licensed practical nurses, certified nursing assistants or persons who are in an approved training program for certified nursing assistants under chapter 18.88A RCW, medicare-certified home health aides, or other persons who hold a similar health credential, as determined by the secretary, or persons with special education training and an endorsement granted by the superintendent of public instruction, as described in RCW 28A.300.010, if the secretary determines that the circumstances do not require certification.(B) A person who was initially hired as a long-term care worker prior to January 7, 2012, and who completes all of ((his or her))the training requirements in effect as of the date ((he or she))the person was hired.(ii) Individuals exempted by (a)(i) of this subsection may obtain certification as a home care aide without fulfilling the training requirements in RCW 74.39A.074(1)(d)(ii) but must successfully complete a certification examination pursuant to RCW 18.88B.031.(b) All long-term care workers employed by community residential service businesses.(c) An individual provider caring only for ((his or her))the individual provider's biological, step, or adoptive child or parent.(d) A person working as an individual provider who provides twenty hours or less of care for one person in any calendar month.(e) A person working as an individual provider who only provides respite services and works less than three hundred hours in any calendar year.(f) A long-term care worker providing approved services only for a spouse or registered domestic partner, pursuant to the long-term services and supports trust program established in chapter 50A.--- RCW (the new chapter created in section 1917 of this act).(2) A long-term care worker exempted by this section from the training requirements contained in RCW 74.39A.074 may not be prohibited from enrolling in training pursuant to that section.(3) The department shall adopt rules to implement this section.NEW SECTION.  Sec.

19.17.

Sections 1 through 1514 of this act constitute a new chapter in Title 50A RCW.--- END ---