WSR 06-22-077

PROPOSED RULES

DEPARTMENT OF

SOCIAL AND HEALTH SERVICES
(Children's Administration)

[ Filed October 31, 2006, 3:08 p.m. ]

Original Notice.

Preproposal statement of inquiry was filed as WSR 03-22-087.

Title of Rule and Other Identifying Information: The department is proposing revisions to chapter 388-61A WAC, Shelters for victims of domestic violence, to clarify (1) confidentiality requirements; (2) fire safety requirements for shelter homes; and (3) appeal rights.

Hearing Location(s): Blake Office Park East, Rose Room, 4500 10th Avenue S.E., Lacey, WA 98503 (one block north of the intersection of Pacific Avenue S.E. and Alhadeff Lane, behind Goodyear Tire. A map or directions are available at http://www1.dshs.wa.gov/msa/rpau/docket.html or by calling (360) 664-6097), on December 5, 2006, at 10:00 a.m.

Date of Intended Adoption: Not earlier than December 6, 2006.

Submit Written Comments to: DSHS Rules Coordinator, P.O. Box 45850, Olympia, WA 98504, delivery 4500 10th Avenue S.E., Lacey, WA 98503, e-mail fernaax@dshs.wa.gov, fax (360) 664-6185, by 5:00 p.m. on December 5, 2006.

Assistance for Persons with Disabilities: Contact Stephanie Schiller, DSHS Rules Consultant, by December 1, 2006, TTY (360) 664-6178 or (360) 664-6097 or by e-mail at schilse@dshs.wa.gov.

Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: This proposed amendment:

1. Clarifies, defines, and specifies the confidentiality requirements for emergency domestic violence shelter programs, and incorporates recently enacted federal and state legislative requirements. The anticipated effect will be strengthened confidentiality protections for recipients of services from emergency domestic violence shelter programs.

2. Clarifies the fire safety requirements for emergency domestic violence shelter homes. The anticipated effect will be that contractors obtain annual life and safety inspections from local fire departments or the fire marshal, and DSHS will be relieved from measuring the contractor's compliance with requirements of the state building code.

3. Repeals appeal rights on advice of the assistant attorney general because dispute remedies for contractors are incorporated in the contract for services.

Reasons Supporting Proposal: This amendment incorporates recently enacted federal and state legislative requirements; simplifies the fire safety requirements for emergency domestic violence shelter homes; and repeals unnecessary appeal rights language.

Statutory Authority for Adoption: Chapter 70.123 RCW.

Statute Being Implemented: Chapter 259, Laws of 2006 (ESHB 2848), and federal Public Law 109-162.

Rule is necessary because of federal law, Public Law 109-162 (HR 3402).

Name of Proponent: Department of social and health services, governmental.

Name of Agency Personnel Responsible for Drafting, Implementation and Enforcement: Susan Hannibal, 4045 Delridge Way S.W., Room 200, Seattle, 98106, (206) 923-4910.

No small business economic impact statement has been prepared under chapter 19.85 RCW. Chapter 19.85 RCW, the Regulatory Fairness Act, requires that the economic impact of proposed regulations be analyzed in relation to small businesses. The statute outlines information that must be included in a small business economic impact statement (SBEIS). Preparation of an SBEIS is required when a proposed rule has the potential of placing a disproportionate economic impact on small businesses.

Children's administration (CA) distributed an electronic survey to forty-one of the forty-three agencies that DSHS currently contracts with to provide emergency domestic violence shelter and advocacy services. Based on the survey results, CA analyzed the proposed rule amendments and concluded that they will impose no new costs on small businesses. The preparation of a comprehensive SBEIS is not required.

A cost-benefit analysis is required under RCW 34.05.328. A preliminary cost-benefit analysis may be obtained by contacting Susan Hannibal, 4045 Delridge Way S.W., Room 200, Seattle, WA 98106, phone (206) 923-4910, fax (206) 923-4899, e-mail hsus300@dshs.wa.gov.

October 23, 2006

Andy Fernando, Manager

Rules and Policies Assistance Unit

3622.3
AMENDATORY SECTION(Amending WSR 01-07-053, filed 3/16/01, effective 4/16/01)

WAC 388-61A-0025   What definitions apply to domestic violence shelters and services?   "Advocacy-based counseling" means that the client is involved with an advocate counselor in individual, family, or group sessions with the primary focus on safety planning, empowerment, and education of the client through reinforcing the client's autonomy and self-determination.

"Advocate counselor" means a trained staff person who works in a domestic violence service and provides advocacy-based counseling, counseling, and supportive temporary shelter services to clients.

"Client" means a victim of domestic violence or dependent child of the victim.

"Cohabitant" means a person who is married or is living with a person as a husband or wife at the present time or at some time in the past. Any person who has one or more children in common with another person, regardless of whether they have been married or have lived together at any time, is considered a cohabitant.

"Confidential communication" means all information, oral, written or nonverbal, transmitted between a victim of domestic violence and a domestic violence advocate counselor in the course of their relationship and in confidence by means which, so far as the victim is aware, does not disclose the information to a third person.

"Confidential information" includes, but is not limited to, any information, advice, notes, reports, statistical data, memoranda, working papers, records or the like, made or given during the relationship between a victim of domestic violence and a domestic violence advocate counselor, however maintained. Confidential information specifically includes the name, address, telephone number, social security number, date of birth, nine-digit ZIP code, and other personally identifying information, physical appearance of, and case file or history of, any victim of domestic violence who seeks or has received services from a domestic violence advocate counselor or domestic violence service.

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

"Domestic violence" includes, but is not limited to, the criminal offenses defined in RCW 10.99.020 when committed by one cohabitant against another.

"Domestic violence service" means an agency that provides shelter, advocacy, and counseling for domestic violence clients in a safe, supportive environment.

"Lodging unit" means one or more rooms used for a victim of domestic violence including rooms used for sleeping or sitting.

"Personally identifying information" includes, but is not limited to, first and last name, home or other physical address, telephone number, social security number, date of birth, nine-digit ZIP code, and other personally identifying information, physical appearance of, and case file or history of, any victim of domestic violence who seeks or has received services from a domestic violence advocate counselor or domestic violence service, or such other information which, taken individually or together with other identifying information, could identify a particular individual.

"Program" means the DSHS domestic violence program.

"Safe home" means a shelter that has two or less lodging units and has a written working agreement with a domestic violence service.

"Secretary" means the DSHS secretary or the secretary's designee.

"Shelter" means a safe home or shelter home that provides temporary refuge and adequate food and clothing offered on a twenty-four hour, seven-day-per-week basis to victims of domestic violence and their children.

"Shelter home" means a shelter that has three or more lodging units and either is a component of or has a written working agreement with a domestic violence service.

"Staff" means persons who are paid or who volunteer services and are a part of a domestic violence service.

"Victim" means a cohabitant who has been subjected to domestic violence.

"We, us and our" refers to the department of social and health services and its employees.

"You, I and your" refers to the domestic violence service or shelter.

[Statutory Authority: Chapter 70.123 RCW. 01-07-053, 388-61A-0025, filed 3/16/01, effective 4/16/01.]


AMENDATORY SECTION(Amending WSR 01-07-053, filed 3/16/01, effective 4/16/01)

WAC 388-61A-0135   What are the additional requirements for a shelter home?   Shelter homes must meet the following additional requirements in order for a domestic violence service to contract with us:

(1) When a shelter home is not a component of a domestic violence service, the shelter home and domestic violence service must have a written working agreement before the shelter home receives clients from the domestic violence service. The written working agreement must include:

(a) Confirmation that the domestic violence service has inspected the shelter home and that the shelter home complies with the general facility and additional requirements for shelter homes;

(b) How the domestic violence service will provide supportive services to shelter home residents; and

(c) Verification that shelter home staff received initial basic training as outlined in this rule by the domestic violence service.

(2) Shelter homes must provide at least one toilet, sink, and bathing facility for each fifteen clients or fraction of this number. The floors of all toilet and bathing facilities must be resistant to moisture.

(3) You must have at least one telephone at the shelter for incoming and outgoing calls. Next to the telephone in shelter homes you must post:

(a) Emergency telephone numbers; and

(b) Instructions on how residents can access domestic violence service staff.

(4) In shelter homes all bathrooms, toilet rooms, laundry rooms, and janitor closets containing wet mops and brushes must have natural or mechanical ventilation in order to prevent objectionable odors and condensation.

(5) When staff serve food to clients in shelter homes, the staff must prepare the food in compliance with WAC 246-215-190, Temporary food service establishment.

(6) Shelter homes must develop and post hygiene procedures for handling and storing diapers and sanitizing the changing area.

(7) Shelter homes must ((comply with the fire and life safety requirements as outlined in chapter 51-40 WAC)) request an annual fire and life safety inspection from their local fire department or fire marshal. The domestic violence service must maintain documentation of the request as well as any report issued as a result of the inspection. Any violations noted by the inspector must be immediately corrected by the domestic violence service.

(8) Shelter homes must meet the following requirements for bedrooms:

(a) Bedrooms must have a minimum ceiling height of seven and half feet;

(b) Bedrooms must provide at least fifty square feet of usable floor area per bed; and

(c) Floor area where the ceiling height is less than five feet cannot be considered as usable floor area.

(9) When clients are residing in a shelter home at least one domestic violence service staff member must be present or on-call to go to the shelter home twenty-four-hours a day, seven-days-per-week.

[Statutory Authority: Chapter 70.123 RCW. 01-07-053, 388-61A-0135, filed 3/16/01, effective 4/16/01.]

Reviser's note: The typographical error in the above section occurred in the copy filed by the agency and appears in the Register pursuant to the requirements of RCW 34.08.040.
NEW SECTION
WAC 388-61A-0146   What information must the domestic violence service keep confidential?   (1) Agents, employees, and volunteers of a domestic violence service must maintain the confidentiality of all personally identifying information, confidential communications, and all confidential information as defined by WAC 388-61A-0025. Information which individually or together with other information could identify a particular victim of domestic violence must also be kept confidential.

(2) Any reports, records, working papers, or other documentation, including electronic files, maintained by the domestic violence service, including information provided to the domestic violence service on behalf of the client. Any information considered privileged by statute, rule, regulation or policy that is shared with the domestic violence service on behalf of the client shall not be divulged without a valid written waiver of the privilege that is based on informed consent, or as otherwise required by law.

(3) You must comply with the provisions of this section regarding confidential communications concerning clients regardless of when the client received the services of the domestic violence service.

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NEW SECTION
WAC 388-61A-0147   What information can be disclosed?   (1) You can disclose confidential information only when:

(a) The client provides informed, written consent to the waiver of confidentiality that relates only to the client or the client's dependents;

(b) Failure to disclose is likely to result in a clear, imminent risk of serious physical injury or death of the client or other person;

(c) Disclosure is required under Chapter 26.44 RCW, Abuse of Children;

(d) Release of information is made to an authorized person to the extent necessary for a management audit, financial audit, or program evaluation with the following restrictions:

(i) The authorized person shall sign a confidentiality agreement with the domestic violence service that demonstrates his or her acknowledgment of the requirement that client information be kept confidential;

(ii) No personally identifying information about the client can be copied or removed from the domestic violence service;

(iii) No copies of working papers or other documentation about the client can be removed from the domestic violence service; and

(iv) The client file cannot be removed from the premises of the domestic violence service.

(e) Release of information is otherwise required by law or court order, with the following additional requirements:

(i) The domestic violence service shall make reasonable attempts to provide notice to the person affected by the disclosure of the information; and

(ii) If personally identifying information is or will be disclosed, the domestic violence service shall take steps necessary to protect the privacy and safety of the persons affected by the disclosure of information.

(2) Any release of information subject to any of the exceptions set forth above shall be limited to the minimum necessary to meet the requirement of the exception, and such release does not void the client's right to confidentiality and privilege on any other confidential communication between the client and the domestic violence service.

(3) In the case of an unemancipated minor, the minor and the parent or guardian must provide the written consent. Consent for release may not be given by a parent who has abused the minor or the minor's other parent. In the case of a disabled adult who has been appointed a guardian, the guardian must consent to release unless the guardian is the abuser of the disabled adult.

(4) To comply with federal, state, tribal, or territorial reporting, evaluation, or data collection requirements, domestic violence programs my disclose nonpersonally identifying data in the aggregate regarding services to their clients and nonpersonally identifying demographic information.

(5) If requested, a copy of the disclosed information shall be provided to the client.

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NEW SECTION
WAC 388-61A-0148   What information needs to be included in a written waiver of confidentiality?   (1) To be valid, a written waiver of confidentiality must:

(a) Be voluntary;

(b) Relate only to the client or the client's dependents;

(c) Clearly describe the scope and any limitations of the information to be released;

(d) Include an expiration date for the release; and

(e) Inform the client that consent can be withdrawn at any time whether it is made orally or in writing.

(2) If the written waiver of confidentiality does not include an expiration date, it shall expire ninety days after the date it was signed.

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NEW SECTION
WAC 388-61A-0149   What information must be provided to clients about their right to confidentiality?   (1) You must provide each client with a written "Notice of Rights" at the time of initial and any subsequent intake into the domestic violence service. At a minimum, the Notice of Rights shall inform clients of the following:

(a) The client's right to privacy and confidentiality of the information shared with the domestic violence service;

(b) Exceptions to confidentiality as described in this chapter;

(c) That if the client signs a written waiver of confidentiality that allows their information to be shared with others, the client does not give up their right to have that information protected under other statutes, rules or laws;

(d) That the client has the right to withdraw a written waiver of confidentiality at any time; and

(e) That the domestic violence service will not condition the provision of services to the client based on a requirement that the client sign one or more releases of confidential information.

(2) Information on the "Notice of Rights" must be explained to the client at the time of intake into the domestic violence service and then again, at the time the client is considering whether to sign a written waiver of confidentiality.

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REPEALER

     The following sections of the Washington Administrative Code are repealed:
WAC 388-61A-0185 What are my rights if DSHS suspends, revokes, or denies funding?
WAC 388-61A-0190 Will I be notified if my funding has been suspended, revoked, or denied?
WAC 388-61A-0195 How do I request an agency hearing?

Washington State Code Reviser's Office