WSR 04-12-099

PROPOSED RULES

DEPARTMENT OF

SOCIAL AND HEALTH SERVICES
(Aging and Disability Services)

[ Filed June 2, 2004, 11:11 a.m. ]

Original Notice.

Preproposal statement of inquiry was filed as WSR 04-02-009.

Title of Rule: Residential habilitation center (RHC) ICF/MR program, chapters 388-835 and 388-837 WAC.

Purpose: To implement the 2003-2005 state operating budget bill (Section 205, chapter 25, Laws of 2003 1st sp.s.) in which the state legislature provided funds for RHC (residential habilitation centers) consolidation and downsizing of Fircrest School. In the budget detail documents, the legislature stated its intent that: "The department shall consolidate vacancies across all residential habilitation centers in order to downsize Fircrest School." To accomplish the consolidation and downsizing the department is adding new and amending WAC to clarify the difference between community intermediate care facilities for the mentally retarded (ICF/MR) rules and state operated ICF/MR (RHC) rules and to amend rules clarifying under what circumstances an individual may be transferred between state operated facilities; and to provide residents a mechanism for an informal administrative review.

Other Identifying Information: Temporary emergency rules on this subject have been filed as WSR 04-02-010 and 04-10-016. The proposed rules, when adopted as permanent rules and effective, will replace the emergency rules.

Statutory Authority for Adoption: Chapter 71A.20 RCW; RCW 71A.20.140 and 71A.12.080.

Statute Being Implemented: Chapter 71A.20 RCW, RCW 71A.20.140, 71A.12.080, section 205, chapter 25, Laws of 2003 1st sp.s.

Summary: The department determined that the process of downsizing of Fircrest School needed to begin immediately in order for the department to remain within its budget allocation. As such emergency rules were adopted to assure the safety and welfare of the residents of Fircrest School as the department established procedures for transfer of residents from Fircrest to other state operated facilities or care settings.

Reasons Supporting Proposal: The department is required to implement the legislatively passed budget and to stay within the parameters set in the budget. The department has had the authority to move residents of RHCs between RHCs. This action clarifies the department's authority to do this by separating the rules applying to community ICF/MRs and state operated ICF/MRs (RHCs).

Name of Agency Personnel Responsible for Drafting: Jeannie Johnson, OB-2, P.O. Box 45310, Olympia, WA 98504-5310, (360) 902-7562; Implementation: Linda Johnson, OB-2, P.O. Box 45310, Olympia, WA 98504-5310, (360) 902-0200; and Enforcement: Linda Rolfe, OB-2, P.O. Box 45310, Olympia, WA 98504-5310, (360) 902-8484.

Name of Proponent: Department of Social and Health Services, governmental.

Rule is not necessitated by federal law, federal or state court decision.

Explanation of Rule, its Purpose, and Anticipated Effects: The new WAC separates and makes distinct the community ICF/MR and state operated ICF/MR (RHC) programs. It sets forth and clarifies the state's authority to transfer residents of one RHC to another RHC; clarifies that when a resident moves to the community from an RHC they have a right to a hearing or an informal administrative review when a transfer between RHCs occurs. There is not a new effect to the implementation of these rules. There is a clarification to rules already in place and clarification to the authority the department already has regarding transfer of residents between state operated (RHCs) facilities. It does not change the rights of appeal when a resident of an RHC is moved to a community residential placement.

Proposal Changes the Following Existing Rules: See Purpose, Summary, and Reasons Supporting Proposal above.

No small business economic impact statement has been prepared under chapter 19.85 RCW. The proposed rule does not impact small businesses.

RCW 34.05.328 does not apply to this rule adoption. The proposed rules are procedural rules under RCW 34.05.328 (5)(c)(i), and do not meet the definition of a "significant legislative rule." The rules clarify existing hearing rights, and adopt procedures to request an informal administrative review, available to a resident of a department operated residential habilitation center or the resident's legal representative when a resident is transferred between RHCs.

Hearing Location: Blake Office Park (behind Goodyear Courtesy Tire), 4500 10th Avenue S.E., Rose Room, Lacey, WA 98503, on July 6, 2004, at 10:00 a.m.

Assistance for Persons with Disabilities: Contact Andy Fernando, DSHS Rules Coordinator, by July 1, 2004, phone (360) 664-6094, TTY (360) 664-6178, e-mail fernaax@dshs.wa.gov.

Submit Written Comments to: Identify WAC Numbers, DSHS Rules Coordinator, Rules and Policies Assistance Unit, mail to P.O. Box 45850, Olympia, WA 98504-5850, deliver to 4500 10th Avenue S.E., Lacey, WA, fax (360) 664-6185, e-mail fernaax@dshs.wa.gov, by 5:00 p.m., July 6, 2004.

Date of Intended Adoption: Not earlier than July 7, 2004.

May 28, 2004

Brian H. Lindgren, Manager

Rules and Policies Assistance Unit

3353.5
Chapter 388-837 WAC

RESIDENTIAL HABILITATION CENTER (RHC) ICF/MR PROGRAM


NEW SECTION
WAC 388-837-9005   What is the purpose of this chapter?   (1) The purpose of this chapter is to establish rules authorized by Title 71A RCW for RHC ICF/MR programs, rules that:

(a) Regulate the purchase and provision of services in state operated intermediate care facility for the mentally retarded (ICF/MR); and

(b) Assure adequate ICF/MR care, service, and protection are provided through certification procedures; and

(c) Establish standards for providing habilitative training, health-related care, supervision, and residential services to eligible persons.

(2) Except where specifically referenced, this chapter supersedes and replaces any and all sections affecting ICF/MR facilities or programs contained in chapter 388-96 WAC.

(3) Except as referenced, definitions in WAC 388-835-0010 apply to this chapter.

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NEW SECTION
WAC 388-837-9015   What does a transfer from one RHC to another RHC mean?   A transfer means the discharge of a resident from the current RHC in which the resident resides and the admission of that resident to another RHC.

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NEW SECTION
WAC 388-837-9020   Do residents have a right to a hearing when transferring from a residential habilitation center (RHC) to another RHC?   Notwithstanding hearing rights set forth in WAC 388-825-120 (1)(d), there is no right to an adjudicative proceeding for a resident when the department concludes that the facility where the resident resides cannot provide services due to:

(1) Decertification of the RHC;

(2) Revocation of the RHC's certification; or

(3) An emergency suspension of the RHC's certification;

(4) Partial closure of the RHC; or

(5) Closure of the RHC.

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NEW SECTION
WAC 388-837-9030   What rights are available to a resident regarding a proposed transfer from one RHC to another RHC?   (1) A resident, their guardian, next-of-kin, or responsible party must be notified in writing at least thirty days before any transfer occurs.

(2) The transfer notice must include the reason for the proposed transfer.

(3) A resident, their guardian, next of kin, or responsible party has a right to an informal administrative review before the division director or designee.

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NEW SECTION
WAC 388-837-9040   What rights are available to a resident regarding a proposed transfer from an RHC to the community, per RCW 71A.20.080?   (1) A resident, or the resident's authorized representative has a right to a hearing regarding the proposed transfer from an RHC to the community, per RCW 71A.20.080 and under chapter 34.05 RCW and chapter 388-02 WAC. DSHS must send a hearing request form with the notice of transfer.

(2) If the resident requests a hearing within the thirty-day time period, DSHS may not transfer the resident until a hearing decision is reached or appeal rights have been exhausted unless the transfer is warranted by the resident's health or safety needs or the welfare of the other residents.

(3) If the secretary or the secretary's designee concludes that the transfer is not appropriate, no further action is to be taken to transfer unless there is a change in the situation or circumstances surrounding the transfer request. If there is a change in the situation or circumstances, the request may be resubmitted.

(4) If the secretary or the secretary's designee affirms the decision to transfer the resident and no petition for judicial review is filed within thirty days, DSHS may proceed with the planned action.

(5) If the secretary or secretary's designee affirms the decision to transfer the resident and a petition for judicial review has been filed, any proposed transfer must be delayed until the appeal process is complete unless a delay jeopardizes the resident's health or safety or the welfare of other residents, or as otherwise provided in RCW 71A.20.080.

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3354.2
AMENDATORY SECTION(Amending WSR 01-10-013, filed 4/20/01, effective 5/21/01)

WAC 388-835-0085   Why is an individual transferred or discharged?   An individual admitted to a facility can be transferred or discharged only for:

(1) Medical reasons;

(2) A change in the individual's habilitation needs;

(3) The individual's welfare;

(4) The welfare of other residents; ((or))

(5) At the request of the resident or legal guardian;

(6) Partial closure of the facility; or

(7) Closure of the facility.

[Statutory Authority: RCW 71A.20.140. 01-10-013, 388-835-0085, filed 4/20/01, effective 5/21/01.]


AMENDATORY SECTION(Amending WSR 01-10-013, filed 4/20/01, effective 5/21/01)

WAC 388-835-0090   What is the basis of the decision to transfer or discharge an individual?   The decision to transfer or discharge an individual must be based on:

(1) An assessment of the resident in consultation with the service provider and the parent or guardian; and

(2) A review of the relevant records; or

(3) Partial closure of the facility; or

(4) Closure of the facility.

[Statutory Authority: RCW 71A.20.140. 01-10-013, 388-835-0090, filed 4/20/01, effective 5/21/01.]


AMENDATORY SECTION(Amending WSR 01-10-013, filed 4/20/01, effective 5/21/01)

WAC 388-835-0100   Why would an individual move?   An individual may move if:

(1) The services provided to an individual do not meet their needs;

(2) A facility's ICF/MR certification or license is revoked or suspended;

(3) Medical reasons dictate relocation;

(4) A resident's welfare would be improved;

(5) The welfare of the other residents would be enhanced;

(6) There is no payment for services provided to the resident during their stay at the facility; ((or))

(7) The resident and/or guardian make a formal request;

(8) The facility is partially closing; or

(9) The facility is closing.

[Statutory Authority: RCW 71A.20.140. 01-10-013, 388-835-0100, filed 4/20/01, effective 5/21/01.]


AMENDATORY SECTION(Amending WSR 01-10-013, filed 4/20/01, effective 5/21/01)

WAC 388-835-0115   Can a facility request that an individual be transferred?   Facilities can request that a resident be transferred for the following reasons:

(1) Medical reasons;

(2) A change in the individual's habilitation needs;

(3) The individual's welfare;

(4) The welfare of the other residents; ((or))

(5) Nonpayment for services provided to the resident during the resident's stay at the facility;

(6) The facility is partially closing; or

(7) The facility is closing.

[Statutory Authority: RCW 71A.20.140. 01-10-013, 388-835-0115, filed 4/20/01, effective 5/21/01.]


AMENDATORY SECTION(Amending WSR 01-10-013, filed 4/20/01, effective 5/21/01)

WAC 388-835-0140   Do residents always have a right to a hearing?   Advance notice and planning does not include a right to a hearing for a resident when the department concludes that the facility where the resident resides cannot provide Title XIX services due to:

(1) Termination of the facility's contract;

(2) Decertification of the facility;

(3) Nonrenewal of the facility's contract;

(4) Revocation of the facility's license; ((or))

(5) An emergency suspension of the facility's license;

(6) Partial closure of the facility; or

(7) Closure of the facility.

[Statutory Authority: RCW 71A.20.140. 01-10-013, 388-835-0140, filed 4/20/01, effective 5/21/01.]


REPEALER

     The following section of the Washington Administrative Code is repealed:
WAC 388-835-0135 What are DSHS responsibilities when it decides to transfer a resident?

Legislature Code Reviser 

Register

Washington State Code Reviser's Office