Original Notice.

     Preproposal statement of inquiry was filed as WSR 03-18-028.

     Title of Rule: Division of Developmental Disabilities service rules, chapter 388-825 WAC; and County plan for developmental disabilities, chapter 388-850 WAC.

     Purpose: The Division of Developmental Disabilities (DDD) will establish a new program for individuals in need of employment/day program services as directed by the legislature in chapter 371, Laws of 2002. Before these proposed amended and new rules, employment and day program services were paid by DDD as state supplementary payments or through the counties. These rules identify a new program whereby DDD will pay eligible individuals directly with state-only funds and require that these individuals purchase the necessary employment/day program services. The county plan rules are amended to provide funding for the oversight of the use of these direct payments.

     Statutory Authority for Adoption: RCW 71A.12.030, 71A.10.020.

     Statute Being Implemented: 2001-03 Supplemental Budget - ESSB 6387 (chapter 371, Laws of 2002).

     Summary: On July 18, 2003, the Social Security Administration (SSA) informed the state that its current rules governing the payment of the state supplementary payments (SSP) did not satisfy the requirements under sections 1616(a) and 1618 of the Social Security Act ("the act"), 42 U.S.C. 1382 (e)[a], 42 U.S.C. 1382(g) and regulations at 20 C.F.R. 416.2001 and 416.2095-.2099. Specifically, payment to individuals with developmental disabilities to purchase employment/day program services were found by SSA to be vendor payments and disallowed as SSP. Failure to comply with these requirements jeopardizes the department's ability to receive federal financial participation under Title XIX of the act. These rules create a new DDD program for individuals in employment/day programs, removes SSP funding for employment/day programs and provides funding to the counties for oversight of the use of these direct payments.

     Reasons Supporting Proposal: To comply with legislative directives and to respond to concerns from the federal Social Security Administration.

     Name of Agency Personnel Responsible for Drafting: Steve Brink, DDD, P.O. Box 45310, Olympia, WA 98504-5310, (360) 902-7716, brinksc@dshs.wa.gov; Implementation and Enforcement: Colleen Erskine, DDD, P.O. Box 45310, Olympia, WA 98504-5310, (360) 902-8470, erskicm@dshs.wa.gov.

     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: See Purpose, Summary, and Reasons Supporting Proposal above.

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

     Amended rules include WAC 388-825-020, 388-825-055, 388-825-100, 388-825-120, 388-825-205, 388-825-252, 388-825-254, 388-850-035, and 388-850-045.

     New rules include WAC 388-825-060, 388-825-065, 388-825-070, 388-825-075, 388-825-076, 388-825-077, 388-825-078, 388-825-085, 388-825-086, 388-825-087, 388-825-090, and 388-825-095.

     No small business economic impact statement has been prepared under chapter 19.85 RCW. An SBEIS is not required because these rules do not impact small businesses as described in RCW 19.85.020.

     RCW 34.05.328 does not apply to this rule adoption. These rules are exempt from this requirement under RCW 34.05.328 (5)(b)(vii). These DSHS rules relate solely to financial eligibility for services from DDD.

     Hearing Location: Blake Office Park (behind Goodyear Courtesy Tire), 4500 10th Avenue S.E., Rose Room, Lacey, WA 98503, on December 9, 2003, at 10:00 a.m.

     Assistance for Persons with Disabilities: Contact Andy Fernando, DSHS Rules Coordinator, by December 5, 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. on December 9, 2003.

     Date of Intended Adoption: Not earlier than December 10, 2003.

October 15, 2003

Brian H. Lindgren, Manager

Rules and Policies Assistance Unit

     "Adolescent" means a DDD eligible child age thirteen through seventeen years.

     "Attendant care" means provision of physical and/or behavioral support to protect the safety and well being of a client.

     "Best interest" includes, but is not limited to, client-centered benefits to:

     (1) Prevent regression or loss of skills already acquired;

     (2) Achieve or maintain economic self-support;

     (3) Achieve or maintain self-sufficiency;

     (4) Prevent or remedy neglect, abuse, or exploitation of individuals unable to protect their own interest;

     (5) Preserve or reunite families; and

     (6) Provide the least-restrictive setting that will meet the person's medical and personal needs.

     "Client or person" means a person the division determines under RCW 71A.16.040 and WAC 388-825-030 eligible for division-funded services.

     "Community support services" means one or more of the services listed in RCW 71A.12.040 including, but not limited to the following services: Architectural, case management, early childhood intervention, employment, counseling, family support, respite care, information and referral, health services and equipment, therapy services, and residential support.

     "Companion home" means the same as "intensive individual supported living support."

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

     "Director" means the director of the division of developmental disabilities.

     "Division or DDD" means the division of developmental disabilities of the department of social and health services.

     "Emergency" means a sudden, unexpected occurrence demanding immediate action.

     "Exemption" means the department's approval of a written request for an exception to a rule in this chapter.

     "Family" means individuals, of any age, living together in the same household and related by blood, marriage, adoption or as a result of sharing legal custody of a minor child.

     "Family resources coordinator" means the person who is:

     (1) Recognized by the IDEA Part C lead agency; and

     (2) Responsible for:

     (a) Providing family resources coordination;

     (b) Coordinating services across agencies; and

     (c) Serving as a single contact to help families receiving assistance and services for their eligible children who are under three years of age.

     "ICF/MR" means a facility certified as an intermediate care facility for the mentally retarded by Title XIX to provide services to the mentally retarded or persons with related conditions.

     "ICF/MR Eligible" for admission to an ICF/MR means a person is determined by DDD as needing active treatment as defined in CFR 483.440. Active treatment requires:

     (1) Twenty-four hour supervision; and

     (2) Continuous training and physical assistance in order to function on a daily basis due to deficits in the following areas: Toilet training, personal hygiene, dental hygiene, self-feeding, bathing, dressing, grooming, and communication.

     "Individual" means a person applying for services from the division.

     "Individual alternative living" means provision of community-based individualized client training, assistance and/or ongoing support to enable a client to live as independently as possible with minimal services.

     (("Individual supportive living service" (also known as companion home) means provision of twenty-four hour residential support in a nonlicensed home for one adult person with developmental disabilities.))

     "Intelligence quotient score" means a full scale score on the Wechsler, or the intelligence quotient score on the Stanford-Binet or the Leiter International Performance Scale.

     "Intensive individual supported living support" (also known as companion home) means provision of twenty-four hour residential support in a nonlicensed home for no more than one adult person with developmental disabilities in a regular family residence approved and contracted by the department ensuring client health, safety and well-being.

     "Medicaid personal care" is the provision of medically necessary personal care tasks as defined in chapter 388-15 WAC.

     "Nonresidential programs" means programs including, but not limited to, county-funded habilitation services.

     "Nursing facility eligible" means a person is assessed by DDD as meeting the requirements for admission to a licensed nursing home as defined in WAC 388-71-0700 (3) through (5). The person must require twenty-four hour care provided by or under the supervision of a licensed nurse.

     "Other resources" means resources that may be available to the client, including but not limited to:

     (1) Private insurance;

     (2) Medicaid;

     (3) Indian health care;

     (4) Public school services through the office of the superintendent of public instruction; and

     (5) Services through the department of health.

     "Part C" means early intervention for children from birth through thirty-five months of age as defined in the Individuals with Disabilities Education Act (IDEA), Part C and 34 CFR, Part 303 and Washington's federally approved grant.

     "Residential habilitation center" or "RHC" means a state-operated facility certified to provide ICF/MR and/or nursing facility level of care for persons with developmental disabilities.

     "RHC capacity" means the maximum number of eligible persons that can reside in a residential habilitation center without exceeding its 1997 legislated budgeted capacity.

     "Residential programs" means provision of support for persons in community living situations. Residential programs include DDD certified community residential services and support, both facility-based such as, licensed group homes, and non-facility based, i.e., supportive living, intensive tenant support, and state-operated living alternatives (SOLA). Other residential programs include individual alternative living, intensive individual supportive living services, adult family homes, adult residential care services, nursing homes, and children's foster homes.

     "Respite care" means temporary residential services provided to a person and/or the person's family on an emergency or planned basis.

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

     "State supplementary payment (SSP)" is the state paid cash assistance program for certain DDD eligible SSI clients.

     "Vacancy" means an opening at a RHC, which when filled, would not require the RHC to exceed its 1997 biannually budgeted capacity, minus:

     (1) Twenty-six beds designated for respite care use; and

     (2) Any downsizing related to negotiations with the Department of Justice regarding community placements.

     "Vulnerable adult" means a person who has a developmental disability as defined under RCW 71A.10.020.

[Statutory Authority: RCW 71A.16.010, 71A.16.030, 71A.12.030, chapter 71A.20 RCW, RCW 72.01.090, and 72.33.125. 02-16-014, § 388-825-020, filed 7/25/02, effective 8/25/02. Statutory Authority: RCW 71A.12.030 and 71A.12.040. 99-23-021, amended and recodified as § 388-825-020, filed 11/9/99, effective 12/10/99. Statutory Authority: RCW 71A.12.030. 99-04-071, § 275-27-020, filed 2/1/99, effective 3/4/99. Statutory Authority: RCW 74.12A.030 and 71A.16.030. 98-20-044, § 275-27-020, filed 9/30/98, effective 10/7/98. Statutory Authority: RCW 71A.14.030 and 71A.16.020. 92-09-115 (Order 3373), § 275-27-020, filed 4/21/92, effective 5/22/92. Statutory Authority: RCW 71A.16.020. 91-17-005 (Order 3230), § 275-27-020, filed 8/9/91, effective 9/9/91. Statutory Authority: RCW 71.20.070. 89-06-049 (Order 2767), § 275-27-020, filed 2/28/89; 84-15-058 (Order 2124), § 275-27-020, filed 7/18/84. Statutory Authority: RCW 72.01.090, 72.33.040, 72.33.125 and 72.33.165. 78-04-033 (Order 1280), § 275-27-020, filed 3/16/78; Order 1143, § 275-27-020, filed 8/11/76.]

     (a) Placement to and from residential habilitation centers;

     (b) Community residential services;

     (c) Family support services; ((and))

     (d) Nonresidential programs; and

     (e) Employment/day programs when the person receives the funding directly from DDD to pay for the services, subject to the eligibility requirements in WAC 388-825-060 and the restrictions in WAC 388-825-065. Allowable employment/day program services are listed in WAC 388-850-035.

     (2) The division's authorization of state funded services shall be based on the ((availability of)) services and funding available.

     (a) Persons must meet the programmatic and financial eligibility requirements for the specific services;

     (b) Funding for state paid services is available in the state operating budget; and

     (c) SSP funding is not available to the client.

     (3) The division will include the following persons when determining authorized services:

     (a) The person;

     (b) The person's parent or guardian and may include:

     (i) The person's advocate; or

     (ii) Other responsible parties.

     (4) Per RCW 71A.16.010 the division shall offer adults the choice of admittance to a residential habilitation center if all of the following conditions exist:

     (a) An RHC vacancy is available;

     (b) Funding, specifically designated for this purpose in the state operating budget, is available for alternative community support services;

     (c) The person or their family is requesting residential services;

     (d) The person meets ICF/MR or nursing facility eligibility for the available RHC vacancy;

     (e) The person is the most in need of residential services as determined by DDD after reviewing all persons determined eligible for ICF/MR or nursing facility level of care. DDD will make this selection based on the following criteria:

     (i) The person is age eighteen or older;

     (ii) The person's/family's health and safety is in jeopardy due to the lack of necessary residential support and supervision:

     (A) Priority is given to eligible persons/families currently without necessary residential supports;

     (B) Other eligible persons will be considered based on their risk of losing residential supports due to unstable or deteriorating circumstances.

     (f) The person's alternative DDD funded community support services would cost seventy percent or more of the average RHC rate, assuming a minimum household size of three persons.

     (5) If RHC capacity is not being used for permanent residents, the division will make these vacancies available for respite care or any other services the department determines are needed and allowable within the rules governing the use of federal funds.

     (a) Admission of a child or adolescent to an RHC for respite care requires the written approval of the division director or designee.

     (b) Respite care exceeding thirty days in a calendar year is subject to subsection (6) of this section.

     (6) The division shall not make an emergency or temporary admission of a person to a residential habilitation center for thirty-one days or more without the written approval of the division director or the director's designee if the admission is not a choice provided under subsection (4) of this section.

     (a) Children twelve years of age and younger shall not be admitted to an RHC.

     (b) Admission of an adolescent to an RHC can only occur if:

     (i) DDD determines that foster placement services cannot meet the emergency needs of the child/family; and

     (ii) A voluntary placement plan is in place with DDD with the goal of community placement or family reunification; and

     (iii) Progress towards placement planning is reported to the division director at least every ninety days.

     (7) The division shall authorize county-funded services only when the((:

     (a))) service is included in a department contract((; and

     (b))) and the person is not receiving funding directly from DDD for employment/day program services:

     (a) The person is at least twenty-one years of age and ((graduated from school during their twenty-first year; or)) is no longer attending school; or

     (b) The person is age twenty and graduates prior to his/her July or August twenty-first birthday; or

     (c) ((Person is twenty-two years of age or older; or

     (d) Person)) The child is two years of age or younger and eligible for early intervention services.

     (8) The department shall require a person to participate in defraying the cost of services provided when mandated by state or federal regulation or statute.

[Statutory Authority: RCW 71A.16.010, 71A.16.030, 71A.12.030, chapter 71A.20 RCW, RCW 72.01.090, and 72.33.125. 02-16-014, § 388-825-055, filed 7/25/02, effective 8/25/02; 99-19-104, recodified as § 388-825-055, filed 9/20/99, effective 9/20/99. Statutory Authority: RCW 74.12A.030 and 71A.16.030. 98-20-044, § 275-27-230, filed 9/30/98, effective 10/7/98. Statutory Authority: RCW 71A.16.020. 91-17-005 (Order 3230), § 275-27-230, filed 8/9/91, effective 9/9/91. Statutory Authority: RCW 71.20.070. 86-18-049 (Order 2418), § 275-27-230, filed 8/29/86; 84-15-058 (Order 2124), § 275-27-230, filed 7/18/84. Statutory Authority: RCW 71.20.070, 72.33.125 and 72.33.850. 82-06-034 (Order 1771), § 275-27-230, filed 3/1/82. Statutory Authority: RCW 72.01.090, 72.33.040, 72.33.125 and 72.33.165. 78-04-033 (Order 1280), § 275-27-230, filed 3/16/78; Order 1143, § 275-27-230, filed 8/11/76.]

     (2) This program is available only to individuals born prior to September 1, 1981.

     (3) If you were born between September 1, 1979 and August 31, 1981:

     (a) You received employment/day program services from a county or a county-contracted provider funded by DDD between July 1, 2001 and June 30, 2003, and:

     (i) You have been assessed by DDD, the division of vocational rehabilitation (DVR) or the department of services for the blind to be in need of long-term support; and

     (ii) You receive services from a county or a county-contracted provider; and

     (iii) You have developed a plan with DDD for employment/day program services.

     (b) If you are on the community alternatives program (CAP) waiver and received employment/day program services between July 1, 2001 and August 31, 2002, but receive no CAP waiver services from DDD other than employment/day program services, you will receive employment/day program services according to WAC 388-850-035. You will not receive funds directly from DDD for employment/day program services.

     (4) If you were born prior to September 1, 1979 and you have been assessed by DDD, the division of vocational rehabilitation (DVR) or the department of services for the blind to be in need of long-term support:

     (a) You were authorized by DDD and the county for employment/day program services for December 2002; and

     (b) These services were funded totally with state funds; and

     (c) You continue to receive services from a county or county-contracted provider.

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     (2) If you do not have a protective payee or representative payee, the warrant/check will be sent directly to you.

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     (a) The person, organization, institution or agency that acts as your representative payee for Supplemental Security Income (SSI);

     (b) Your parent, if you are under eighteen;

     (c) Your spouse; or

     (d) A person, organization, institution or agency you select if the department approves your selection.

     (2) If you select a representative payee under subsection (1)(d) of this section, the department will evaluate the selection according to the following criteria:

     (a) The relationship of the payee to you;

     (b) The amount of interest the payee shows in you;

     (c) Any legal authority the payee has to act on your behalf;

     (d) Whether the payee has custody of you; and

     (e) Whether the payee is in a position to know of and look after your needs.

     (3) The DDD director or designee will approve or deny your request for a representative under subsection (1)(d) of this section.

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     (1) Spend the DDD direct payment funds on you or your behalf;

     (2) Notify the department if any event happens that may affect the amount of benefits you receive;

     (3) Submit to the department, upon our request, a written report accounting for the payments received; and

     (4) Notify the department if any change in the payee's circumstances that would affect performance of the payee responsibilities.

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     (1) You did not spend the direct payment funds on employment/day program services as specified in WAC 388-825-065; or

     (2) You were no longer eligible for services from the division of developmental disabilities in the month in which the SSP was issued; or

     (3) Your assessed need has changed.

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     (2) If you are paid through a representative payee, both you and the representative payee may be responsible for repayment.

     (a) You are responsible to the extent that the incorrect payments were spent on you or your behalf. Funds conserved by a representative payee to which you do not have direct access have not been spent on you or your behalf.

     (b) If the incorrect payments were spent on you or your behalf and the representative payee is without fault in connection with the overpayment, you are solely responsible for repayment.

     (c) The representative payee is solely responsible for repayment if:

     (i) The incorrect payments were not spent on you or your behalf; and

     (ii) The representative payee is at fault in connection with the overpayment.

     (d) A government entity or an institution can be a representative payee and can be found responsible for repayment -- just as a private individual can.

     (e) You and the representative payee are both responsible for repayment when the incorrect payments have been spent on you or your behalf and the representative payee is at fault.

     (3) The representative payee is at fault when the representative payee was aware of the reason you were not eligible for the direct payment funds.

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     (a) Denial or termination of eligibility set forth in WAC ((388-825-100)) 388-825-030 and 388-825-035;

     (b) Development or modification of the individual service plan set forth in WAC 388-825-050;

     (c) Authorization, denial, reduction, or termination of services or funds paid directly to the client set forth in WAC 388-825-055 or payment of SSP set forth in chapter 388-827 WAC ((388-825-100)); and

     (d) Admission or readmission to, or discharge from, a residential habilitation center.

     (2) The notice shall set forth appeal rights pursuant to WAC 388-825-120 and a statement that the client's case manager can be contacted for an explanation of the reasons for the action.

     (3)(a) The department shall provide notice of a denial or partial authorization of a family support services request and a statement of reason for denial or partial authorization, or reduction to the person or persons described in subsection (1) of this section. The department shall send such notice no later than five working days before the end of the month previous to the month for which service was requested;

     (b) The department shall make available an administrative review of a decision to deny or partially authorize services upon receipt of a written request by a person or persons described in subsection (1) of this section to the administrator of the region in which the client is living. The regional office must receive a request for administrative review by the last working day of the month;

     (c) The client shall state in the written request why the client or client's family believes their service priority designation is not correct;

     (d) Upon receipt of request for administrative review, the regional administrator or designee shall review the request and the client file; and

     (e) The department shall send the results of the administrative review to the client and/or family within the first five working days of the service month for which the client is being denied or receiving a partial authorization for services.

     (4) The department shall provide at least thirty days' advance notice of action to terminate a client's eligibility, terminate or reduce a client's service, or discharge a client from a residential habilitation center to the community. Transfer or removal of a client from a service set forth in WAC 388-825-120 (5)(f) is governed by that section, and reduction of family support funding during the service authorization period is covered by subsection (3)(a) of this section.

     (5) All parties affected by such department decision shall be consulted, whenever possible, during the decision process by the responsible field services regional office in person and/or by telephone.

     (6) The division shall ensure notification to the school district in which a school-aged child is to be placed when a placement decision is reached.

[Statutory Authority: RCW 71A.16.010, 71A.16.030, 71A.12.030, chapter 71A.20 RCW, RCW 72.01.090, and 72.33.125. 02-16-014, § 388-825-100, filed 7/25/02, effective 8/25/02; 99-19-104, recodified as § 388-825-100, filed 9/20/99, effective 9/20/99. Statutory Authority: RCW 71A.12.030, 71A.12.040 and Title 71A RCW. 97-13-051, § 275-27-400, filed 6/13/97, effective 7/14/97. Statutory Authority: RCW 71.20.070. 88-05-004 (Order 2596), § 275-27-400, filed 2/5/88; 86-18-049 (Order 2418), § 275-27-400, filed 8/29/86; 84-15-058 (Order 2124), § 275-27-400, filed 7/18/84. Statutory Authority: RCW 72.01.090, 72.33.040, 72.33.125 and 72.33.165. 78-04-033 (Order 1280), § 275-27-400, filed 3/16/78; Order 1143, § 275-27-400, filed 8/11/76.]

     (a) Denial or termination of eligibility set forth in WAC ((388-825-100)) 388-825-030 and 388-825-035;

     (b) Development or modification of the individual service plan set forth in WAC 388-825-050;

     (c) Authorization, denial, reduction, or termination of services or funds paid directly to the client set forth in WAC 388-825-055 or payment of SSP set forth in chapter 388-827 WAC ((388-825-100));

     (d) Admission or readmission to, or discharge from, a residential habilitation center;

     (e) A claim the client, former client, or applicant owes an overpayment debt;

     (f) A decision of the secretary under RCW 71A.10.060 or 71A.10.070;

     (g) A decision to change a client's placement from one category of residential services to a different category of residential services.

     (2) Adjudicative proceedings are governed by the Administrative Procedure Act (chapter 34.05 RCW), RCW 71A.10.050, the rules in this chapter, and by chapter 388-02 WAC. If any provision in this chapter conflicts with chapter 388-02 WAC, the provision in this chapter shall govern.

     (3) The applicant's application for an adjudicative proceeding shall be in writing and filed with the DSHS office of appeals within twenty-eight days of receipt of the decision the appellant wishes to contest.

     (4) The department shall not implement the following actions while an adjudicative proceeding is pending:

     (a) Termination of eligibility;

     (b) Reduction or termination of service, except when the action to reduce or terminate the service is based on the availability of funding and/or service; or

     (c) Removal or transfer of a client from a service, except when a condition in subsection (5)(f) of this section is present.

     (5) The department shall implement the following actions while an adjudicative proceeding is pending:

     (a) Denial of eligibility;

     (b) Development or modification of an individual service plan;

     (c) Denial of service;

     (d) Reduction or termination of service when the action to reduce or terminate the service is based on the availability of funding or service;

     (e) After notification of an administrative law judge's (or review judge) ruling that the appellant has caused an unreasonable delay in the proceedings; or

     (f) Removal or transfer of a client from a service when:

     (i) An immediate threat to the client's life or health is present;

     (ii) Service termination or transfer for a specific group of clients in order to meet the intent of and comply with sections 205 and 207, chapter 371, Laws of 2002;

     (iii) The client's service provider is no longer able to provide services due to:

     (A) Termination of the provider's contract;

     (B) Decertification of the provider;

     (C) Nonrenewal of provider's contract;

     (D) Revocation of provider's license; or

     (E) Emergency license suspension.

     (((iii))) (iv) The client, the parent when the client is a minor, or the guardian when the client is an adult, approves the decision.

     (6) When the appellant files an application to contest a decision to return a resident of a state residential school to the community, the procedures specified in RCW 71A.10.050(2) shall govern the proceeding. These procedures include:

     (a) A placement decision shall not be implemented during any period during which an appeal can be taken or while an appeal is pending and undecided unless the:

     (i) Client's or the client's representative gives written consent; or

     (ii) Administrative law judge (or review judge) after notice to the parties rules the appellant has caused an unreasonable delay in the proceedings.

     (b) The burden of proof is on the department; and

     (c) The burden of proof is whether the specific placement proposed by the department is in the best interests of the resident.

     (7) The ((initial order shall be made)) administrative law judge shall issue an initial or final order within sixty days of the department's receipt of the application for an adjudicative proceeding. When a party files a petition for administrative review, allowed under WAC 388-02-0215(4)(w)(x) and/or (y), the review order shall be made within sixty days of the department's receipt of the petition. The decision-rendering time is extended by as many days as the proceeding is continued on motion by, or with the assent of, the appellant.

[Statutory Authority: RCW 71A.16.010, 71A.16.030, 71A.12.030, chapter 71A.20 RCW, RCW 72.01.090, and 72.33.125. 02-16-014, § 388-825-120, filed 7/25/02, effective 8/25/02; 99-19-104, recodified as § 388-825-120, filed 9/20/99, effective 9/20/99. Statutory Authority: RCW 71A.16.020. 91-17-005 (Order 3230), § 275-27-500, filed 8/9/91, effective 9/9/91. Statutory Authority: RCW 34.05.220 (1)(a) and 71.12.030 [71A.12.030]. 90-04-074 (Order 2997), § 275-27-500, filed 2/5/90, effective 3/1/90. Statutory Authority: RCW 71.20.070. 86-18-049 (Order 2418), § 275-27-500, filed 8/29/86. Statutory Authority: RCW 72.33.161. 84-15-038 (Order 2122), § 275-27-500, filed 7/13/84. Statutory Authority: RCW 72.01.090, 72.33.040, 72.33.125 and 72.33.165. 78-04-033 (Order 1280), § 275-27-500, filed 3/16/78; Order 1143, § 275-27-500, filed 8/11/76.]

     (2) Persons currently receiving services under WAC ((388-825-030)) 388-825-252, Family support services, may volunteer to participate in the program.

     (3) Families will receive program services based on one or more of the following criteria: The date of application, the date the family was placed on the wait list, eligibility for SSP or other available funding, and/or CAP waiver status.

     (4) Availability of the SSP makes the family ineligible for other state only funding for the same service.

[Statutory Authority: RCW 71A.16.010, 71A.16.030, 71A.12.030, chapter 71A.20 RCW, RCW 72.01.090, and 72.33.125. 02-16-014, § 388-825-205, filed 7/25/02, effective 8/25/02; 99-19-104, recodified as § 388-825-205, filed 9/20/99, effective 9/20/99. Statutory Authority: RCW 71A.12.030. 99-04-071, § 275-27-185, filed 2/1/99, effective 3/4/99.]

     (a) Reduce or eliminate the need for out-of-home residential placement of a client where the in-home placement is in the client's best interest;

     (b) Allow a client to live in the most independent setting possible; and

     (c) Have access to services best suited to a client's needs.

     (2) The department's family support services shall include, the following services:

     (a) Respite care, including the use of community activities which provide respite;

     (b) Attendant care;

     (c) Nursing services provided by a registered nurse or licensed practical nurse, that cannot be provided by an unlicensed caregiver, including but not limited to, ventilation, catheterization, insulin injections, etc., when not covered by another resource;

     (d) Therapeutic services, provided these therapeutic services are not covered by another resource such as medicaid, private insurance, public schools, or child development services funding, including:

     (i) Physical therapy;

     (ii) Occupational therapy;

     (iii) Behavior management therapy; and

     (iv) Communication therapy; or

     (v) Counseling for the client relating to a disability.

     (3) Receiving family support services is based on:

     (a) Funding for state paid services available in the state operating budget;

     (b) SSP funding available to the client/family; or

     (c) CAP waiver status.

     (4) The following rules, subsections (5) through (9), apply only to family support services authorized by the department and do not govern services purchased by the family with SSP (state supplementary payment) funding (see WAC 388-827-0145 and 388-827-0170).

     (5) Up to nine hundred dollars of the service need level amount in WAC ((388-825-252)) 388-825-254 may be used during a one year period for flexible use as follows. The requested service must be necessary as a result of the disability of the client.

     (a) Training and supports including parenting classes and disability related support groups;

     (b) Specialized equipment and supplies including the purchase, rental, loan or refurbishment of specialized equipment or adaptive equipment not covered by another resource including Medicaid. Mobility devices such as walkers and wheelchairs are included, as well as communication devices and medical supplies such as diapers for those more than three years of age;

     (c) Environmental modification including home repairs for damages, and modifications to the home needed because of the disability of the client;

     (d) Medical/dental services not covered by any other resource. This may include the payment of insurance premiums and deductibles and is limited to the premiums and deductibles of the client;

     (e) Special formulas or specially prepared foods needed because of the disability of the client;

     (f) Parent/family counseling dealing with a diagnosis, grief and loss issues, genetic counseling and behavior management;

     (g) Specialized clothing adapted for a physical disability, excessive wear clothing, or specialized footwear;

     (h) Specialized utility costs including extraordinary supplemental utility costs related to the client's disability or medical condition;

     (i) Transportation costs for gas or tickets (ferry fare, transit cost) for a client to get to essential services and appointments, if another resource is not available;

     (j) Other services approved by the DDD regional administrator or designee that will replace or reduce ongoing departmental expenditures and will reduce the risk of out-of-home placement. Exemption requests under this section are not subject to appeal.

     (((4))) (6) Recommendations will be made to the regional administrator by a review committee. The regional administrator will approve or disapprove the request and will communicate reasons for denial to the committee.

     (((5))) (7) Payment for services specified in subsection (((3))) (5), except (((3)))(5)(a) and (h), shall cover only the portion of cost attributable to the client.

     (((6))) (8) Requests must be received by DDD no later than midway through the service authorization period unless circumstances exist justifying an emergency.

     (((7))) (9) A plan shall be developed jointly by the family and the department for each service authorization period. The department may choose whether to contract directly with the vendor, to authorize purchase by another agency, or may reimburse the parent of the client.

     (((8))) (10) Emergency Services. Emergency funds may be requested for use in response to a single incident or situation or short term crisis such as care giver hospitalization, absence, or incapacity. The request shall include anticipated resolution of the situation. Funds shall be provided for a limited period not to exceed two months. All requests are to be reviewed and approved or denied by the regional administrator or designee.

     (((9))) (11) A departmental service authorization shall state the type, amount, and period (duration) of service. Each department authorization shall constitute a new service for a new period.

     (((10))) (12) If the client becomes eligible and begins to receive Medicaid Personal Care services as defined in WAC ((388-15-202 through 388-15-203)) 388-71-0202 and 388-71-0203, the family support funding will be reduced at the beginning of the next month of service. The family will receive notice of the reconfiguration of services at least five working days before the beginning of the month.

     (((11))) (13) If requested family support services are not authorized, such actions shall be deemed a denial of services.

     (((12))) (14) Family support services may be authorized below the amount requested by the family for the period. When, during the authorized service period, family support services are reduced or terminated below the amount specified in service authorizations, the department shall deem such actions as a reduction or termination of services.

[Statutory Authority: RCW 71A.16.010, 71A.16.030, 71A.12.030, chapter 71A.20 RCW, RCW 72.01.090, and 72.33.125. 02-16-014, § 388-825-252, filed 7/25/02, effective 8/25/02; 99-19-104, recodified as § 388-825-252, filed 9/20/99, effective 9/20/99. Statutory Authority: RCW 71A.12.030, 71A.12.040 and Title 71A RCW. 97-13-051, § 275-27-220, filed 6/13/97, effective 7/14/97. Statutory Authority: RCW 71A.12.040 and 43.43.745. 94-04-092 (Order 3702), § 275-27-220, filed 2/1/94, effective 3/4/94. Statutory Authority: RCW 71A.12.040. 92-09-114 (Order 3372), § 275-27-220, filed 4/21/92, effective 5/22/92. Statutory Authority: RCW 71.20.070. 88-05-004 (Order 2596), § 275-27-220, filed 2/5/88; 86-18-049 (Order 2418), § 275-27-220, filed 8/29/86.]

     (a) Requests for family support services described in WAC 388-825-252(2) ((of this section)) and (5);

     (b) Service need levels ((as described in WAC 388-825-252(3) of this chapter)). The amount of SSP (state supplementary payment) available to a client will be included when calculating the monthly allocation of state family support dollars.

     (c) Service need level lid amounts ((are)) as follows:

     (i) Clients designated for service need level one (WAC 388-825-256) may receive up to one thousand one hundred fifty-six dollars per month or two thousand four hundred sixty-two dollars per month if the client requires licensed nursing care in the home:

     (A) If a client is receiving funding through Medicaid Personal Care or other DSHS in-home residential support, the maximum payable through family support shall be five hundred twelve dollars per month;

     (B) If the combined total of family support services at this maximum plus in-home support is less than one thousand one hundred fifty-six dollars additional family support can be authorized to bring the total to one thousand one hundred fifty-six dollars.

     (ii) Clients designated for service need level two (WAC 388-825-256) may receive up to four hundred fifty-six dollars per month if not receiving funding through Medicaid personal care:

     (A) If a client is receiving funds through Medicaid personal care or other DSHS in-home residential support service, the maximum receivable through family support shall be two hundred fifty-six dollars per month;

     (B) If the combined total of family support services at this maximum plus in-home support is less than fifty-six hundred four dollars, additional family support can be authorized to bring the total to four hundred fifty-six dollars.

     (iii) Clients designated for service need level three (WAC 388-825-256) may receive up to two hundred fifty-six dollars per month provided the client is not receiving Medicaid personal care. If the client is receiving Medicaid personal care or other DSHS in-home residential support service, the maximum receivable through family support shall be one hundred twenty-eight dollars per month; and

     (iv) Clients designated for service level four (WAC 388-825-256) may receive up to one hundred twenty-eight dollars per month family support services.

     (((c))) (d) Availability of family support funding;

     (((d))) (e) Authorization by a review committee, in each regional office, which reviews each request for service;

     (((e))) (f) The amounts designated in subsection (1)(b)(i) through (iv) of this section are subject to periodic increase if vendor rate increases are mandated by the legislature.

     (2) The department shall authorize family support services contingent upon the applicant providing accurate and complete information on disability-related requests.

     (3) The department shall ensure service authorizations do not exceed maximum amounts for each service need level based on the availability of funds.

     (4) The department shall not authorize a birth parent, adoptive parent, or stepparent living in the same household as the client as the direct care provider for respite, attendant, nursing, therapy, or counseling services for a child seventeen years of age or younger.

[Statutory Authority: RCW 71A.12.030, 71A.12.040, and 2001 2nd sp.s. c 7. 02-01-074, § 388-825-254, filed 12/14/01, effective 1/14/02. Statutory Authority: RCW 71A.12.030 and 71A.12.040. 00-23-106, § 388-825-254, filed 11/21/00, effective 12/22/00; 00-08-090, § 388-825-254, filed 4/5/00, effective 5/6/00; 99-19-104, recodified as § 388-825-254, filed 9/20/99, effective 10/21/99. Statutory Authority: RCW 71A.12.030, 71A.12.040 and Title 71A RCW. 97-13-051, § 275-27-222, filed 6/13/97, effective 7/14/97.]

     (a) The department shall pay a county for department authorized services provided to an eligible developmentally disabled person.

     (b) DD eligible persons who receive funding from DDD directly for employment or day program services shall pay the county or a county contracted provider for services.

     (2) A county may purchase or provide authorized services. Authorized services may include, but are not limited to:

     (a) Early childhood intervention services;

     (b) Employment services;

     (c) Community access services;

     (d) Residential services;

     (e) Individual evaluation;

     (f) Program evaluation;

     (g) County planning and administration; ((and))

     (h) Consultation and staff development; and

     (i) Oversight of the DDD money sent directly to the DDD eligible person.

[99-19-104, recodified as § 388-850-035, filed 9/20/99, effective 9/20/99. Statutory Authority: RCW 71A.14.030. 91-17-005 (Order 3230), § 275-25-520, filed 8/9/91, effective 9/9/91. Statutory Authority: RCW 71.20.070, 72.33.125 and 72.33.850. 82-06-034 (Order 1771), § 275-25-520, filed 3/1/82. Statutory Authority: RCW 71.20.030, 71.20.050, and 71.20.070. 78-04-002 (Order 1278), § 275-25-520, filed 3/2/78; Order 1142, § 275-25-520, filed 8/12/76.]

     (2) The allocation of funds to counties shall be based on the following criteria:

     (a) Each county shall receive a base amount of funds. The amount shall be based on the prior biennial allocation, including any funds from budget provisos from the prior biennium, and subject to the availability of state and federal funds;

     (b) The distribution of any additional funds provided by the legislature or other sources shall be based on a distribution formula which best meets the needs of the population to be served as follows:

     (i) On a basis which takes into consideration minimum grant amounts, requirements of clients residing in an ICF/MR or clients on one of the division's Title XIX home and community-based waivers, and the general population of the county, and special education enrollment as well as the population eligible for county-funded developmental disabilities services;

     (ii) On a basis that takes into consideration the population numbers of minority groups residing within the county;

     (iii) A biennial adjustment shall be made after these factors are considered; and

     (iv) ((Countries)) Counties not receiving any portion of additional funds pursuant to this formula shall not have their base allocation reduced due to application of this formula.

     (c) Funding appropriated through legislative proviso, including vendor rate increases, shall be distributed to the population directed by the legislature utilizing a formula as directed by the legislature or using a formula specific to that population or distributed to identified people;

     (d) The ability of the community to provide funds for the developmental disability program provided in chapter 71A.14 RCW may be considered with any or all of the above.

     (3)(a) A county may utilize seven or less percent of the county's allocated funds for county administrative expenses. A county may utilize more than seven percent for county administration with approval of the division director. A county electing to provide all services directly, in addition to county administration, is exempt from this requirement.

     (b) A county may receive funds for oversight of employment/day program services purchased by DDD clients with money sent directly to the client based on the following conditions:

     (i) The oversight funds for the recipients described below will be allocated at the same rate that the county received in their original 2001-2003 DDD county program agreement for administrative expenses for these same individuals. These funds will be calculated by using the date the recipient began receiving funds directly if the recipient:

     (A) Was born between September 1, 1979 and August 31, 1981; and

     (B) Received a county or county-contracted service between July 1, 2001 and June 30, 2002; and

     (C) Continues to receive a county or county-contracted service.

     (ii) Oversight funds for the recipients described below will be allocated at the same rate that the county received in their original 2001-2003 DDD county program agreement for administrative expenses for these same individuals. These funds will be calculated by using the date the recipient began receiving funds directly if the recipient:

     (A) Was born prior to September 1, 1979; and

     (B) Was authorized by DDD and the county for employment/day program services for December, 2002; and

     (C) Continues to receive a county or county-contracted service.

     (iii) The oversight funds for recipients described below shall equal up to seven percent of the amount of the funds received directly by the recipient, if the recipient:

     (A) Was born between September 1, 1979 and August 31, 1981; and

     (B) Received no county or county-contracted service prior to July 1, 2002; and

     (C) Received or will receive a county or county-contracted service between July 1, 2002 and June 30, 2003; and

     (D) Continues to receive a county or county-contracted service.

     (4) The department may withhold five or less percent of allocated funds for new programs, for statewide priority programs, and for emergency needs.

[99-19-104, recodified as § 388-850-045, filed 9/20/99, effective 9/20/99. Statutory Authority: RCW 71A.14.040. 92-13-032 (Order 3404), § 275-25-530, filed 6/10/92, effective 7/11/92. Statutory Authority: RCW 71A.14.030. 91-17-005 and 91-17-025 (Orders 3230 and 3230A), § 275-25-530, filed 8/9/91 and 8/14/91, effective 9/9/91 and 9/14/91. Statutory Authority: RCW 69.54.040 and 71.24.190. 83-03-011 (Order 1936), § 275-25-530, filed 1/12/83; Order 1142, § 275-25-530, filed 8/12/76.]

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