Original Notice.

     Preproposal statement of inquiry was filed as WSR 03-08-078.

     Title of Rule: Chapter 388-880 WAC, Sexual predator program -- Special commitment -- Escorted leave.

     Purpose: In accordance with RCW 71.09.040(4), the department is amending the evaluation sections of chapter 388-880 WAC, and any related rules, that refer to "evaluations, evaluation criteria, evaluation preparation, and other procedures" to determine if a person meets the definition of a sexually violent predator pursuant to chapter 71.09 RCW.

     Statutory Authority for Adoption: RCW 71.09.040(4).

     Statute Being Implemented: RCW 71.09.040(4).

     Summary: Proposed rule relates to evaluation processes for possible civil commitment and (1) authorize the secretary or designee to enter agreements with other agencies/entities to implement rule; (2) clarify qualifications for out-of-state professional evaluators; (3) remove unused categories of evaluators; (4) specify bases, content, and form of evaluations; (5) clarify conditions for sexual predator program admission; and (6) align terminology with statute.

     Reasons Supporting Proposal: Proposed rule allows interagency and intradepartmental cooperation to streamline the evaluation process and reduce costs.

     Name of Agency Personnel Responsible for Drafting: Cynthia Alexander, DSHS, Office of Administrative Resources, Blake East, 4500 10th S.E., Lacey, (360) 664-6073 and Lee E. Mosley, SCC Administrative Office, Steilacoom, (253) 589-7352; Implementation and Enforcement: Kim Acker, DOC Headquarters, Olympia, (360) 664-9001 and Dan Yanisch, SCC Administrative Office, Steilacoom, (253) 589-7352.

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

     Agency Comments or Recommendations, if any, as to Statutory Language, Implementation, Enforcement, and Fiscal Matters: No small business impact. Cost savings to the state is anticipated.

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

     Explanation of Rule, its Purpose, and Anticipated Effects: This rule is intended to support a cooperative relationship between governmental and prosecutorial agencies with the purpose of reducing duplication of evaluations leading to possible court commitment to determine whether those persons meet the definition of a sexually violent predator under chapter 71.09 RCW.

     The changes also place in rule a standard set of sources and bases for evaluations. The effects are expected to be: (1) Courts will have a consistent model upon which to base an order for evaluations; (2) a single qualified professional will provide an evaluation meeting the needs of each cooperating agency/entity; and (3) the state will realize savings in efficiency and cost by avoiding duplicative evaluations formerly done at various steps in the process leading to a commitment hearing.

     Proposal Changes the Following Existing Rules:

•     The title of the rule is amended to better reflect its contents.

•     Certain categories of evaluators were never used and have been removed.

•     Licensure for out-of-state evaluators was added to relevant definitions, consistent with state licensure requirements.

•     A subsection related to the commitment process is simplified and moved by deletion and addition, to a more logical location in the rule.

•     Terms specifying detention and commitment are clarified as court-detained and court-committed.

     No small business economic impact statement has been prepared under chapter 19.85 RCW. No more than minor costs to small business will occur; therefore, no small business economic impact statement is necessary under the statute.

     RCW 34.05.328 applies to this rule adoption. This rule is considered significant because it makes significant changes to existing rule. A cost benefit analysis has been prepared pursuant to RCW 34.05.328. A copy of this document is available by contacting Lee Mosley, Policy Analyst, Special Commitment Center, P.O. Box 88450, Steilacoom, WA 98388-0646, phone (253) 589-7352, e-mail moslele@dshs.wa.gov.

     Hearing Location: Blake Office Park East (behind Goodyear Courtesy Tire), 4500 10th Avenue S.E., Rose Room, Lacey, WA 98503, on October 21, 2003, at 10:00 a.m.

     Assistance for Persons with Disabilities: Contact Andy Fernando, DSHS Rules Coordinator, by October 17, 2003, 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., October 21, 2003.

     Date of Intended Adoption: Not earlier than October 22, 2003.

August 28, 2003

Brian H. Lindgren, Manager

Rules and Policies Assistance Unit

     (2) ((Beginning July 1, 1990,)) The department's SPP shall provide:

     (a) Custody, supervision, and evaluation of a person court-detained to the SPP to determine if the person meets the definition of a sexually violent predator under chapter 71.09 RCW; and

     (b) Treatment, care, evaluation and control of a person court-committed as a sexually violent predator.

     (3) Evaluations and evaluation procedures may be established in coordination with the department, the department of corrections and the end of sentence review committee.

     (4) Secure facilities operated by the department for the sexual predator program include the special commitment center (SCC) total confinement facility, the secure community transition facility, and any community-based facilities established under chapter 71.09 RCW and operated by the secretary or under contract with the secretary.

     (5) The secretary or designee may execute such agreements as appropriate and necessary to implement this chapter.

[Statutory Authority: Chapter 71.09 RCW, 2000 c 44, 2001 c 286. 02-02-054, § 388-880-005, filed 12/27/01, effective 1/27/02; 99-21-001, recodified as § 388-880-005, filed 10/6/99, effective 10/6/99. Statutory Authority: RCW 71.09.230. 97-24-054, § 275-155-005, filed 12/1/97, effective 1/1/98. Statutory Authority: 1990 c 3. 90-17-120 (Order 3054), § 275-155-005, filed 8/21/90, effective 9/21/90.]

[Statutory Authority: Chapter 71.09 RCW, 2000 c 44, 2001 c 286. 02-02-054, § 388-880-007, filed 12/27/01, effective 1/27/02.]

     "Appropriate facility" means the total confinement facility the department uses to hold and evaluate a person court-detained under chapter 71.09 RCW.

     "Care" means a service the department provides during a person's detention or commitment within a secure facility toward adequate health, shelter, and physical sustenance.

     "Control" means a restraint, restriction, or confinement the department applies protecting a person from endangering self, others, or property during a period of custody under chapter 71.09 RCW.

     "Department" means the department of social and health services.

     "Escorted leave" means a leave of absence from a facility housing persons court-detained or court-committed under chapter 71.09 RCW under the continuous supervision of an escort.

     "Evaluation" means an examination, report, or recommendation by a professionally qualified person ((makes determining)) to determine if a person has a personality disorder and/or mental abnormality((, as defined in chapter 71.09 RCW,)) which renders the person likely to engage in predatory acts of sexual violence if not confined in a secure facility.

     "Immediate family" includes a resident's parents, stepparents, parent surrogates, legal guardians, grandparents, spouse, brothers, sisters, half or stepbrothers or sisters, children, stepchildren, and other dependents.

     "Indigent" means a resident who has not been credited with twenty-five dollars or more total from any source for deposit to the resident's trust fund account during the thirty days preceding the request for an escorted leave and has less than a twenty-five dollar balance in his/her trust fund account on the day the escorted leave is requested, and together with his/her requesting immediate family member affirm in writing that they cannot afford to pay the costs of the escorted leave without undue hardship. A declaration of indigency shall be signed by the resident and the resident's requesting immediate family member on forms provided by the department.

     "Individual treatment plan (ITP)" means an outline the SCC staff persons develop detailing how control, care, and treatment services are provided to a court-committed person or to a court-detained person.

     "Less restrictive alternative" means court-ordered treatment in a setting less restrictive than total confinement which satisfies the conditions stated in RCW 71.09.092.

     "Less restrictive alternative facility" means a secure community transition facility as defined under RCW 71.09.020(1).

     "Mental abnormality" means a congenital or acquired condition, including a personality disorder, affecting the person's emotional or volitional capacity, predisposing the person to the commission of criminal sexual acts in a degree constituting such person a menace to the health and safety of others.

     "Oversight" means official direction, guidance, review, inspection, investigation, and information gathering activities conducted for the purposes of program quality assurance by persons or entities within, or external to, the SCC.

     "Personality disorder" carries the same definition as found in the DSM-IV-TR and includes psycopathy as assessed using the Hare PCL-R or similar instrument.

     "Predatory" means acts a person directs toward:

     (1) Strangers;

     (2) Individuals with whom a relationship has been established or promoted for the primary purpose of victimization; or

     (3) Persons of casual acquaintance with whom no substantial personal relationship exists.

     "Professionally qualified person" means:

     (1) (("Mental health counselor" means a person licensed as a mental health counselor under chapter 251, Laws of 2001;

     (2) "Psychiatric nurse" means a person licensed as a registered nurse under chapter 18.79 RCW and having two or more years supervised clinical experience;

     (3))) "Psychiatrist" means a person licensed as a physician ((under)) in this state, or licensed or certified in another state, in accordance with chapters 18.71 and 18.57 RCW. In addition, the person shall:

     (a) Have completed three years of graduate training in a psychiatry program approved by the American Medical Association or the American Osteopathic Association; and

     (b) Be certified, or eligible to be certified, by the American Board of Psychiatry and Neurology.

     (((4))) (2) "Psychologist" means a person licensed as a doctor of psychology ((under)) in this state, or licensed or certified in another state, in accordance with chapter 18.83 RCW;

     (((5) "Social worker" means a person licensed as an advanced social worker or independent clinical social worker under chapter 251, Laws of 2001; and

     (6))) (3) "Clinical practitioner" means a sex offender treatment provider certified by the department of health under chapter 18.155 RCW((, or a forensic therapist three or forensic therapist supervisor designated to perform annual evaluations)).

     "Resident" means a person court-detained or court-committed pursuant to chapter 71.09 RCW.

     "Secretary" means the secretary of the department of social and health services or the secretary's designee.

     "Secure community transition facility" means a residential facility for persons civilly committed and conditionally released to a less restrictive alternative under chapter 71.09 RCW. A secure community transition facility has supervision and security, and either provides or ensures the provision of sex offender treatment services. Secure community transition facilities include, but are not limited to, the facilities established in RCW 71.09.201 and any community-based facilities established under chapter 71.09 RCW and operated by the secretary or under contract with the secretary.

     "Secure facility" means a residential facility for persons court-detained or court-committed under the provisions of chapter 71.09 RCW that includes security measures sufficient to protect the community. Such facilities include total confinement facilities, secure community transition facilities, and any residence used as a court-ordered placement in RCW 71.09.096.

     "Sexual predator program" means a department-administered and operated program including the special commitment center (SCC) established for:

     (1) A court-detained person's custody and evaluation; or

     (2) Control, care, and treatment of a court-committed person defined as a sexually violent predator under chapter 71.09 RCW.

     "Sexually violent offense" means an act defined under chapter 9A.28 RCW, RCW 9.94A.030 and 71.09.020.

     "Sexually violent predator" means any person who has been convicted of or charged with a crime of sexual violence and who suffers from a mental abnormality or personality disorder which makes the person likely to engage in predatory acts of sexual violence if not confined in a secure facility.

     "Superintendent" means the person delegated by the secretary of the department to be responsible for the general operation, program, and facilities of the SCC.

     "Total confinement facility" means a facility that provides supervision and sex offender treatment services in a total confinement setting. Total confinement facilities include the special commitment center and any similar facility designated as a secure facility by the secretary.

[Statutory Authority: Chapter 71.09 RCW, 2000 c 44, 2001 c 286. 02-02-054, § 388-880-010, filed 12/27/01, effective 1/27/02; 99-21-001, recodified as § 388-880-010, filed 10/6/99, effective 10/6/99. Statutory Authority: RCW 71.09.230. 97-24-054, § 275-155-010, filed 12/1/97, effective 1/1/98. Statutory Authority: 1990 c 3. 90-17-120 (Order 3054), § 275-155-010, filed 8/21/90, effective 9/21/90.]

     (4))) when, under RCW 71.09.060, a court or jury ((finds a person)) determines, beyond a reasonable doubt, ((to be)) that the person is a sexually violent predator and commits the person ((is committed to the department's custody)) for placement in a secure facility operated by the department for control, care, and treatment.

[Statutory Authority: Chapter 71.09 RCW, 2000 c 44, 2001 c 286. 02-02-054, § 388-880-020, filed 12/27/01, effective 1/27/02; 99-21-001, recodified as § 388-880-020, filed 10/6/99, effective 10/6/99. Statutory Authority: RCW 71.09.030 and 71.09.050. 93-17-027 (Order 3609), § 275-155-020, filed 8/11/93, effective 9/11/93. Statutory Authority: 1990 c 3. 90-17-120 (Order 3054), § 275-155-020, filed 8/21/90, effective 9/21/90.]

     (2) ((If the trial is continued beyond the forty-five day period specified in RCW 71.09.050(1), the evaluation must be completed and provided to attorneys for the prosecution and defense by the date ordered by the trail court or at least thirty days prior to trial)) The evaluation must be conducted in accordance with the criteria set forth in WAC 388-880-033, and must be in the form required by and filed in accordance with WAC 388-880-034 and 388-880-036.

[Statutory Authority: Chapter 71.09 RCW, 2000 c 44, 2001 c 286. 02-02-054, § 388-880-030, filed 12/27/01, effective 1/27/02; 99-21-001, recodified as § 388-880-030, filed 10/6/99, effective 10/6/99. Statutory Authority: 1990 c 3. 90-17-120 (Order 3054), § 275-155-030, filed 8/21/90, effective 9/21/90.]

     (2) The annual ((report shall)) evaluation must include consideration of whether:

     (a) The person currently meets the definition of a sexually violent predator; and

     (b) Conditional release to a less restrictive alternative is in the best interest of the person and conditions can be imposed that would adequately protect the community.

     (((2))) (3) The report of the department shall be in the form of a declaration or certification in compliance with the requirements of RCW 9A.72.085 and shall be prepared by a professionally qualified person as defined herein.

     (((3))) (4) The department shall file this periodic report with the court that detained or committed the person under chapter 71.09 RCW.

     (((4))) (5) A copy of this report shall be served on the prosecuting agency involved in the initial hearing or commitment and upon the detained or committed person and his or her counsel.

[Statutory Authority: Chapter 71.09 RCW, 2000 c 44, 2001 c 286. 02-02-054, § 388-880-031, filed 12/27/01, effective 1/27/02.]

     (1) have demonstrated expertise in conducting evaluations of sex offenders, including diagnosis and assessment of re-offense risk,

     (2) have demonstrated expertise in providing expert testimony related to sex offenders of other forensic topics, and

     (3) provide documentation of such qualification to the department.

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     (1) Examination of the resident, including a forensic interview and a medical examination, if necessary;

     (2) Review of the following records, tests or reports relating to the person:

     (a) All available criminal records, to include arrests and convictions, and records of institutional custody, including city, county, state and federal jails or institutions, with any records and notes of statements made by the person regarding criminal offenses, whether or not the person was charged with or convicted of the offense;

     (b) All necessary and relevant court documents;

     (c) Sex offender treatment records and, when permitted by law, substance abuse treatment program records, including group notes, autobiographical notes, progress notes, psycho-social reports and other material relating to the person's participation in treatment;

     (d) Psychological and psychiatric testing, diagnosis and treatment, and other clinical examinations, including records of custody in a mental health treatment hospital or other facility;

     (e) Medical and physiological testing, including plethysmography and polygraphy;

     (f) Any end of sentence review report, with information for all prior commitments upon which the report or reports were made;

     (g) All other relevant and necessary records, evaluations, reports and other documents from state or local agencies;

     (h) Pertinent contacts with collateral informants;

     (i) Other relevant and appropriate tests that are industry standard practices;

     (j) All evaluations, treatment plans, examinations, forensic measures, charts, files, reports and other information made for or prepared by the SCC which relate to the resident's care, control, observation, and treatment.

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     (2) The report of the evaluation must include:

     (a) A description of the nature of the examination;

     (b) A diagnosis of the mental condition of the person;

     (c) A determination of whether the person suffers from a mental abnormality or personality disorder;

     (d) An opinion as to whether the person meets the definition of a sexually violent predator.

     (3) The department shall file the evaluation with the court that detained or committed the person under chapter 71.09 RCW.

     (4) A copy of the evaluation must be served on the prosecuting agency involved in the initial hearing or commitment, and upon the court-detained or court-committed person and his or her counsel.

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     (2) The ITP shall be based upon, but not limited to, the following information as may be available:

     (a) The person's offense history;

     (b) A psycho-social history;

     (c) The person's most recent ((annual)) evaluation; and

     (d) A statement of high risk factors for potential re-offense, as may be ascertained over time.

     (3) The ITP shall include, but not be limited to:

     (a) A description of the person's specific treatment needs in:

     (i) Sex offender specific treatment;

     (ii) Substance abuse treatment;

     (iii) Supports to promote psychiatric stability;

     (iv) Supports for medical conditions and disability;

     (v) Social, family, and life skills.

     (b) An outline of intermediate and long-range treatment goals, with ((a)) cognitive and behavioral measures for achieving the goals;

     (c) The treatment strategies for achieving the treatment goals;

     (d) A description of SCC staff persons' responsibilities; and

     (e) A general plan and criteria, keyed to the resident's achievement of long-range treatment goals, for recommending to the court whether the person should be released to a less restrictive alternative.

     (4) SCC staff persons shall review the person's ITP every six months.

     (5) A court-detained person's plan may include access to program services and opportunities available to persons who are court-committed, with the exception that the court-detained person may be restricted in employment and other activities, depending on program resources and incentives reserved for persons who are court-committed and/or actively involved in treatment.

     (6) Nothing in this chapter shall exclude a court-detained person from engaging in the sex offender treatment program and, should the person elect to engage in treatment prior to the person's commitment trial:

     (a) The person shall be accorded privileges and access to program services in a like manner as are accorded to a court-committed person in treatment; and

     (b) Shall not, solely by reason of the person's voluntary participation in treatment, be judged nor assumed by staff, administrators or professional persons of the SCC or of the department to meet the definition of a sexually violent predator under chapter 71.09 RCW.

[Statutory Authority: Chapter 71.09 RCW, 2000 c 44, 2001 c 286. 02-02-054, § 388-880-040, filed 12/27/01, effective 1/27/02; 99-21-001, recodified as § 388-880-040, filed 10/6/99, effective 10/6/99. Statutory Authority: 1990 c 3. 90-17-120 (Order 3054), § 275-155-040, filed 8/21/90, effective 9/21/90.]

     (a) All evaluations, records, reports, and other documents obtained from other agencies relating to the person prior to the person's detention and/or commitment to the SCC;

     (b) All evaluations, clinical examinations, forensic measures, charts, files, reports, and other information made for or prepared by SCC personnel, contracted professionals, or others which relate to the person's care, control, and treatment during the person's detention or commitment to, the SCC.

     (2) Records made by contracted professional persons providing treatment or residential services may be maintained in their professional files, subject to contractual arrangement for SCC or department access to those records.

[Statutory Authority: Chapter 71.09 RCW, 2000 c 44, 2001 c 286. 02-02-054, § 388-880-042, filed 12/27/01, effective 1/27/02.]

     (a) The person's attorney;

     (b) The person's professionally qualified person, if any;

     (c) The prosecuting attorney, or the attorney general, if requested by the prosecuting attorney; ((and))

     (d) The professionally qualified person ((approved by the prosecuting attorney or the attorney general)); and

     (e) Any entity, person or agency having lawful access to such records.

     (2) Upon documented request by a resident, the SCC shall provide the resident supervised access to all records and reports, or to redacted copies thereof, related to the person's commitment, control, care, and treatment. The SCC may reasonably limit conditions, frequency and duration of the person's access to the person's records and reports.

     (3) A policy on access to resident records shall be maintained and published to residents of the SCC.

[Statutory Authority: Chapter 71.09 RCW, 2000 c 44, 2001 c 286. 02-02-054, § 388-880-044, filed 12/27/01, effective 1/27/02.]

     (a) While a person is currently court-detained or court-committed to the SCC;

     (b) Following a court ruling that a person does not meet the definition of a sexually violent ((sexual)) predator within chapter 71.09 RCW and upon the person's release from the custody of the department;

     (c) Following a resident's unconditional discharge from commitment;

     (d) Following a resident's death.

     (2) All original records specified herein and held by the SCC shall be retained in the SCC total confinement facility for a period of five years, and in the records center of the Secretary of State for a period consistent with department administrative policy, after a resident's:

     (a) Release following a court ruling that the person does not meet the definition of a sexually violent ((sexual)) predator within chapter 71.09 RCW;

     (b) Unconditional discharge from commitment; or

     (c) Death.

[Statutory Authority: Chapter 71.09 RCW, 2000 c 44, 2001 c 286. 02-02-054, § 388-880-045, filed 12/27/01, effective 1/27/02.]

     (a) Apprise the person of the person's right to an attorney and to retain a professionally qualified person to perform an evaluation on the person's behalf;

     (b) Provide access to the person and the person's records in accordance with RCW 71.09.080 and WAC 388-880-044.

     (2) A person the court detains for evaluation or commits to the SCC shall:

     (a) Receive adequate care and individualized treatment;

     (b) Be permitted to wear the person's own clothing except as may be required during an escorted leave from the secure facility, and to keep and use the person's own possessions, except when deprivation of possessions is necessary for the person's protection and safety, the protection and safety of others, or the protection of property within the SCC;

     (c) Be permitted to accumulate and spend a reasonable amount of money in the person's SCC account;

     (d) Have access to reasonable personal storage space within SCC limitations;

     (e) Be permitted to have approved visitors within reasonable limitations;

     (f) Have reasonable access to a telephone to make and receive confidential calls within SCC limitations; and

     (g) Have reasonable access to letter writing material and to:

     (i) Receive and send correspondence through the mail within SCC limitations and according to established safeguards against the receipt of contraband material to include, in the resident's presence, opening and inspecting packages and fanning written material; and

     (ii) Send written communication regarding the fact of the person's detention or commitment.

     (3) A person the court commits to the SCC shall have the following procedural rights to:

     (a) Have reasonable access to an attorney and be informed of the name and address of the person's designated attorney;

     (b) Petition the court for release from the SCC; and

     (c) Receive annual written notice of the person's right to petition the committing court for release. The department's written notice and waiver shall:

     (i) Include the option to voluntarily waive the right to petition the committing court for release; and

     (ii) Annually be forwarded to the committing court by the department.

[Statutory Authority: Chapter 71.09 RCW, 2000 c 44, 2001 c 286. 02-02-054, § 388-880-050, filed 12/27/01, effective 1/27/02; 99-21-001, recodified as § 388-880-050, filed 10/6/99, effective 10/6/99. Statutory Authority: RCW 71.09.030 and 71.09.050. 93-17-027 (Order 3609), § 275-155-050, filed 8/11/93, effective 9/11/93. Statutory Authority: 1990 c 3. 90-17-120 (Order 3054), § 275-155-050, filed 8/21/90, effective 9/21/90.]

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     (2) The department shall calculate ability to pay and assess liability under chapter 275-16 WAC.

[99-21-001, recodified as § 388-880-060, filed 10/6/99, effective 10/6/99. Statutory Authority: 1990 c 3. 90-17-120 (Order 3054), § 275-155-060, filed 8/21/90, effective 9/21/90.]

     Reviser's note: The bracketed material preceding the section above was supplied by the code reviser's office.
REPEALER

     The following section of the Washington Administrative Code is repealed:

WAC 388-880-032

Recommendation for release to a less restrictive alternative (LRA).

© Washington State Code Reviser's Office