Date Adopted: December 19, 2003.

     Purpose: The Division of Developmental Disabilities (DDD) will establish a new program for individuals in need of employment/day program services. Under existing rules, employment and day program services were paid as state supplementary payments or through the counties. These emergency rules identify a new program whereby DDD will pay individuals directly with state-only funds and require that these individuals purchase the necessary employment/day program services. These rules are needed to extend emergency rules filed as WSR 03-18-029 on August 25, 2003, while the department completes the regular rule-making process. Proposed rules were filed as WSR 03-21-156, and a public hearing was held on December 9, 2003.

     Citation of Existing Rules Affected by this Order: Amending 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.

     Statutory Authority for Adoption: RCW 71A.12.030.

     Other Authority: RCW 71A.10.020, 2001-03 Supplemental Budget ESSB 6387 (chapter 371, Laws of 2002).

     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; and 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: Conditions have changed since the emergency rule was adopted as WSR 03-10-027. 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 requirements under section 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 20 C.F.R. 416.2095-.2099. Specifically, payment to individuals with developmental disabilities to purchase employment/day program services under existing rules 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 and removes SSP funding for employment/day programs. The rules are necessary to implement chapter 371, Laws of 2002.

     Immediate adoption is necessary to preserve the public health and general welfare for individuals with developmental disabilities who need employment/day program services. Further, immediate adoption is necessary to preserve the public health and general welfare by allowing the state to continue to receive federal financial participation (FFP) for its Medicaid program under Title XIX of the act. The loss of FFP would effectively terminate medical assistance under Title XIX for low-income families and individuals in the state of Washington. Establishment of a new DDD program for individuals in employment/day programs is necessary to continue support for these individuals.

     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 12, Amended 9, 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 12, Amended 9, Repealed 0.

     Effective Date of Rule: Immediately.

December 17, 2003

Brian H. Lindgren, Manager

Rules and Policies Assistance Unit

     Reviser's note: The material contained in this filing exceeded the page-count limitations of WAC 1-21-040 for appearance in this issue of the Register. It will appear in the 04-02 issue of the Register.