Date Adopted: December 19, 2003.

     Purpose: The Division of Developmental Disabilities has been directed by the 2002 Washington state legislature to begin paying an income supplemental, called state supplementary payment (SSP). Implementation of this directive requires amendment of rules in chapter 388-820 WAC. The department has initiated a rule-making proceeding to adopt permanent rules on this subject matter. A CR-102 proposal statement of inquiry [proposed rule making] was filed as WSR 03-21-033, and public hearing was held on November 25, 2003. These rules supersede the emergency WAC 388-820-020, 388-820-060 and 388-820-120 filed in WSR 03-18-030 on August 25, 2003.

     Citation of Existing Rules Affected by this Order: Amending WAC 388-820-020, 388-820-060, and 388-820-120.

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

     Other Authority: 2001-03 Supplemental Budget ESSB 6387, (chapter 371, Laws of 2002).

     Under RCW 34.05.350 the agency for good cause finds that state or federal law or federal rule or a federal deadline for state receipt of federal funds requires immediate adoption of a rule.

     Reasons for this Finding: The state legislature in adopting ESSB 6387 (chapter 371, Laws of 2002), has directed the Division of Developmental Disabilities to begin paying an income supplement, called state supplementary payment. In its published "Final Budget - Statewide Agency Detail" for ESSB 6387, the legislature also clearly stated its intent that "Beginning July 2002, state supplemental payments will no longer be provided automatically to all persons receiving a federal SSI benefit. SSI recipients will continue to receive their federal benefits and their federally provided annual cost of living increases each January. Some recipients who are dependent on larger state supplements will be provided a transitional state supplemental payment. The remaining amount of state supplemental payments required by federal rules will be used to support low ... income families who are struggling to continue to care for children and other relatives with developmental disabilities." Emergency adoption of these rules is necessary to implement ESSB 6387 and the legislature's intent. The department is working with public stakeholders to develop proposed rules for permanent adoption. A public hearing on proposed rules filed as WSR 03-21-033 was held on November 25, 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 0, Amended 3, Repealed 0.

     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 0, Amended 3, Repealed 0.

     Effective Date of Rule: Immediately.

December 12, 2003

Brian H. Lindgren, Manager

Rules and Policies Assistance Unit

     "Certification" means the determination by DSHS that an agency or service provider has satisfactorily complied with the requirements outlined in this chapter and in the department contract.

     "Client" means a person who:

     ((•)) (1) Has a developmental disability;

     ((•)) (2) Is eligible under RCW 71A.10.020 (for eligibility criteria, see chapter 388-825 WAC); and

     ((•)) (3) Is authorized by DDD to receive residential services outlined in this chapter or privately purchases residential services. (((For eligibility criteria, see chapter 388-825 WAC.)))

     "Client services" means instruction and support activities that benefit clients, as specified under WAC 388-820-450 through 388-820-510.

     "Community alternatives program (CAP)" means a Title XIX Medicaid waiver program that serves a specific number of individuals. This waiver is for particular home- and community-based services not covered under the Medicaid state plan. (See WAC 388-825-170 for more details.)

     "Community protection services" (Community Protection Intensive Supported Living Services, or CP-ISLS) means intensive supported living services provided to clients who meet the criteria of "Individual with Community Protection Issues."

     "DDD" refers to the division of developmental disabilities at DSHS.

     "DSHS" refers to the department of social and health services of Washington state.

     "Exceptions" means DSHS' approval of a written request for an exception to a rule in this chapter. (There are no exceptions to RCWs.)

     "Group home" means residential services provided in a dwelling that is:

     ((•)) (1) Owned, leased, or rented by an entity other than the client;

     ((•)) (2) Licensed by the applicable state authority; and

     ((•)) (3) Operated by a provider.

     (See WAC 388-820-090 for further details.)

     "Group training home" means a certified nonprofit residential facility that provides full-time care, treatment, training, and maintenance for clients, as defined under RCW 71A.22.020(2).

     "IFP" refers to individual financial plan. (See WAC 388-820-620.)

     "IISP" refers to the individual instruction and support plan for clients. (See WAC 388-820-560 through 388-820-580.)

     "Individual with community protection issues" means a client identified by DDD as needing one or more of the following criteria:

     ((•)) (1) The person has been convicted of or charged with a crime of sexual violence as defined in chapter 71.09 RCW, including, but not limited to, rape, statutory rape, rape of a child, and child molestation;

     ((•)) (2) The person has been convicted of or charged with acts directed towards strangers or individuals with whom a relationship has been established or promoted for the primary purpose of victimization;

     ((•)) (3) The person has been convicted of or charged with a sexually violent offense and/or predatory act, and may constitute a future danger;

     ((•)) (4) The person has not been convicted and/or charged, but has a history of stalking, sexually violent, predatory, and/or opportunistic behavior which demonstrates a likelihood to commit a sexually violent and/or predatory act based on current behaviors that may escalate to violence;

     ((•)) (5) The person has committed one or more violent crimes, such as murder, attempted murder, arson, first degree assault, kidnapping, or use of a weapon to commit a crime.

     "Instruction" means goal-oriented teaching that is designed for acquiring and enhancing skills.

     "ISP" refers to the individual service plan for clients. (See WAC 388-820-520 through 388-820-550.)

     "Nursing assistant" means a person who is registered or certified by department of health under chapter 18.88A RCW. A nursing assistant performs certain nursing care tasks that are delegated by a registered nurse for a specific client in authorized settings. (See chapter 246-841 WAC for more details.)

     "Reprisal" means any negative action taken as retaliation against an employee.

     "Residential service" means client services offered by certified service providers.

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

     "Service provider" means an agency certified by and contracted with DDD to provide residential services to clients.

     "Severity" means the seriousness of an incident. This is determined by the extent to which a client's physical, mental, or psychosocial well-being is or may be compromised or threatened.

     "Support" means assistance as requested or needed by a client, based on their abilities, needs, and goals.

     "Supported living" means residential services provided to clients living in their own homes, which are owned, rented, or leased by the clients or their legal representatives. (See WAC 388-820-080 for more details.)

     "Trust account" means a bank account containing two or more clients' funds where the service provider has the authority to make deposits and withdrawals.

[Statutory Authority: Title 71A RCW. 01-22-020, § 388-820-020, filed 10/26/01, effective 1/1/02; 99-19-104, recodified as § 388-820-020, filed 9/20/99, effective 9/20/99. Statutory Authority: RCW 71A.12.080. 91-17-005 (Order 3230), § 275-26-020, filed 8/9/91, effective 9/9/91. Statutory Authority: Chapter 72.33 RCW. 86-08-003 (Order 2349), § 275-26-020, filed 3/20/86; 83-05-017 (Order 1945), § 275-26-020, filed 2/9/83.]

[Statutory Authority: Title 71A RCW. 01-22-020, § 388-820-060, filed 10/26/01, effective 1/1/02; 99-19-104, recodified as § 388-820-060, filed 9/20/99, effective 9/20/99. Statutory Authority: RCW 71A.12.080. 91-17-005 (Order 3230), § 275-26-070, filed 8/9/91, effective 9/9/91. Statutory Authority: Chapter 72.33 RCW. 83-05-017 (Order 1945), § 275-26-070, filed 2/9/83.]

     (2) ((DSHS must require a client to share the cost of services when mandated by federal or state statute or regulation)) Clients not included in the department contract may purchase services privately through a separate agreement with the service provider.

     (3) The service provider must inform DSHS when the ((client)) department-funded clients requires additional supports.

     (a) The service provider must submit a written request with justification for additional service hours.

     (b) DSHS may approve and provide payment for additional expenses or services.

     (c) The service provider must retain a copy of department approval.

     (4) For a client who is receiving group home services and support:

     (a) The client must pay for cost of care or services from earnings or other financial resources. Clients receiving SSI are responsible only for the cost of room and board.

     (b) DSHS may pay for these services only after a department-funded client has used his or her own financial resources.

     (c) When a client's guardian or legal representative controls the client's income, estate, or trust fund, they must reimburse the service provider as described in WAC 388-820-120.

     (5) Clients receiving supported living services must pay for their own housing, utilities, food, clothing, and other personal and incidental expenses from earnings and other financial resources.

[Statutory Authority: Title 71A RCW. 01-22-020, § 388-820-120, filed 10/26/01, effective 1/1/02; 99-19-104, recodified as § 388-820-120, filed 9/20/99, effective 9/20/99. Statutory Authority: RCW 71A.12.080. 91-17-005 (Order 3230), § 275-26-107, filed 8/9/91, effective 9/9/91.]