WSR 03-19-119

EMERGENCY RULES

DEPARTMENT OF

SOCIAL AND HEALTH SERVICES
(Health and Rehabilitative Services Administration)

[ Filed September 16, 2003, 4:34 p.m. ]

     Date of Adoption: September 15, 2003.

     Purpose: Amending chapter 388-880 WAC, Sexual predator program -- Special commitment -- Escorted leave, and related rules that refer to evaluations, evaluation criteria, evaluation procedures and other procedures.

     Citation of Existing Rules Affected by this Order: Repealing WAC 388-880-032; and amending WAC 388-880-005, 388-880-007, 388-880-010, 388-880-020, 388-880-030, 388-880-031, 388-880-044, and 388-880-045.

     Statutory Authority for Adoption: Chapter 71.09 RCW, including but not limited to, RCW 71.09.040 and 71.09.800.

     Under RCW 34.05.350 the agency for good cause finds that immediate adoption, amendment, or repeal of a rule is necessary for the preservation of the public health, safety, or general welfare, and that observing the time requirements of notice and opportunity to comment upon adoption of a permanent rule would be contrary to the public interest.

     Reasons for this Finding: Amendments to this rule are immediately important to state superior courts and to prosecuting agencies, as well as to the Department of Social and Health Services, Health and Rehabilitative Services Administration and Juvenile Rehabilitation Administration and to the Department of Corrections as regards content and means of evaluation of persons for possible civil commitment under chapter 71.09 RCW. Failure to amend the rule may lead to a situation in which the state is unable to conduct required evaluations, thereby putting at risk our ability to accurately identify those sex offenders who should not be released because of the very high risk they pose to the community. A proposed permanent rule was filed September 2 with the Office of the Code Reviser as WSR 03-18-106. A public hearing is scheduled for October 21, 2003, with adoption anticipated in December 2003.

     Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 5, Amended 8, Repealed 1.

     Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.

     Number of Sections Adopted on the Agency's Own Initiative: New 0, Amended 0, Repealed 0.

     Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 0, Repealed 0.

     Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0;      Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 5, Amended 8, Repealed 1.
     Effective Date of Rule: Immediately.

September 12, 2003

Brian H. Lindgren, Manager

Rules and Policies Assistance Unit

3236.2
Chapter 388-880 WAC

((SEXUAL PREDATOR PROGRAM -- ))SPECIAL COMMITMENT--((ESCORTED LEAVE)) SEXUALLY VIOLENT PREDATORS

(Formerly chapter 275-155)


AMENDATORY SECTION(Amending WSR 02-02-054, filed 12/27/01, effective 1/27/02)

WAC 388-880-005   Special commitment of sexually violent predators -- Legal basis.   (1) Chapter 71.09 RCW authorizes the department to develop a sexual predator program (SPP) for a person the court determines to be a sexually violent predator.

     (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 board.

     (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 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.]


AMENDATORY SECTION(Amending WSR 02-02-054, filed 12/27/01, effective 1/27/02)

WAC 388-880-007   Purpose.   These rules carry out the legislative intent of chapter 71.09 RCW, authorizing the department to provide evaluation, care, control, and treatment of persons court-detained or court-committed to the sexual predator program, identified as the special commitment center.

[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.]


AMENDATORY SECTION(Amending WSR 02-02-054, filed 12/27/01, effective 1/27/02)

WAC 388-880-010   Definitions.   Unless the context clearly requires otherwise, the definitions in this section apply throughout this chapter.

     "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 psychopathy 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.]


AMENDATORY SECTION(Amending WSR 02-02-054, filed 12/27/01, effective 1/27/02)

WAC 388-880-020   Authorization for indefinite commitment to the sexual predator program.   A person must be admitted to the custody of the department ((shall admit a person as a sexually violent predator only)) when((:

     (1))) a court or jury determines ((probable cause exists and orders the person transferred to an appropriate facility for evaluation;

     (2) The person is evaluated by one or more professionally qualified persons;

     (3) The person is found to have a personality disorder and/or mental abnormality which makes the person more likely than not to engage in predatory acts of sexual violence unless confined in a secure facility; and

     (4) A court or jury finds a person)), beyond a reasonable doubt, ((to be)) the person is a sexually violent predator and under RCW 71.09.060 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.]


AMENDATORY SECTION(Amending WSR 02-02-054, filed 12/27/01, effective 1/27/02)

WAC 388-880-030   Sexual predator program initial evaluation(( -- Reporting)).   (1) When a court orders a person transferred to an appropriate facility for an evaluation as to whether the person is a sexually violent predator, pursuant to RCW 71.09.040(4), the department shall, prior to the scheduled commitment hearing or trial, ((evaluate and)) provide ((a recommendation)) an evaluation to the court, and must make a recommendation as to whether the person has been convicted of or charged with a crime of sexual violence and suffers from a mental abnormality or personality disorder which makes the person more likely than not to engage in predatory acts of sexual violence if not confined in a secure facility.

     (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.

[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.]


AMENDATORY SECTION(Amending WSR 02-02-054, filed 12/27/01, effective 1/27/02)

WAC 388-880-031   Sexual predator program annual evaluation(( -- Reporting)).   (1) Annually or as required by court order, the department shall conduct an evaluation and examine the mental condition of each person court-committed under chapter 71.09 RCW.

     (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.]


NEW SECTION
WAC 388-880-033   Evaluator -- Qualifications.   Professionally qualified persons under contract to provide evaluative services must:

     (1) Have demonstrated expertise in conducting evaluations of persons under consideration for civil commitment as a sexually violent predator;

     (2) Have demonstrated expertise in providing expert testimony in courts of law related to sexually violent predators; and

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

[]


NEW SECTION
WAC 388-880-034   Evaluator -- Pre-trial evaluation responsibilities.   (1) The evaluation done in accordance with WAC 388-880-030(1) in preparation for a trial or hearing must be based on the following:

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

     (b) Whether the resident currently meets the definition of a sexually violent predator; and

     (c) Whether conditional release to a less restrictive alternative is in the best interest of the resident and conditions can be imposed that would adequately protect the community.

     (2) The evaluation must include a 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.

[]


NEW SECTION
WAC 388-880-035   Refusal to participate in pre-commitment evaluation.   If the person refuses to participate in examinations, forensic interviews, psychological testing or any other interviews necessary to conduct the initial evaluation under WAC 388-880-030(1), the evaluator must notify the SCC. The SCC will notify the prosecuting agency for potential court enforcement.

[]


NEW SECTION
WAC 388-880-036   Evaluation -- Reporting.   (1) The evaluation must be in the form of a declaration or certification in compliance with the requirements of RCW 9A.72.085 and must be prepared by a professionally qualified person.

     (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;

     (e) An opinion as to whether 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.

     (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.

[]


AMENDATORY SECTION(Amending WSR 02-02-054, filed 12/27/01, effective 1/27/02)

WAC 388-880-044   Resident records -- Access.   (1) Upon request and proper showing, the department shall provide to the following persons access to a court-detained or court-committed person for an evaluation and access to all records and reports related to the person's detention, commitment, control, care, and treatment:

     (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)).

     (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.]


AMENDATORY SECTION(Amending WSR 02-02-054, filed 12/27/01, effective 1/27/02)

WAC 388-880-045   Resident records -- Retention.   (1) The SCC shall create schedules and requirements, consistent with department policy, for the retention, storage, and disposal of records, documents, evaluations, reports, and other material related to SCC residents, to include:

     (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.]


NEW SECTION
WAC 388-880-055   Recommendation for release to a less restrictive alternative (LRA).   If the court or jury determines that the person is a sexually violent predator, upon an evaluation which supports a person's unconditional discharge or release to a less restrictive alternative, the secretary or secretary's designee shall authorize the person to petition the court in accordance with RCW 71.09.090.

[]


REPEALER

     The following section of the Washington Administrative Code is repealed:
WAC 388-880-032 Recommendation for release to a less restrictive alternative (LRA).

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