WSR 04-02-010

EMERGENCY RULES

DEPARTMENT OF

SOCIAL AND HEALTH SERVICES
(Aging and Disability Services Administration)

[ Filed December 29, 2003, 4:48 p.m. ]


Date Adopted: December 24, 2003.

Purpose: The Division of Developmental Disabilities is adopting emergency rules to implement the 2003-2005 state operating budget bill (section 205, chapter 25, Laws of 2003 1st sp.s.), in which the state legislature provided funds for RHC consolidation and downsizing at the Fircrest School. In the budget detail documents, the legislature stated its intent that: "The department shall consolidate vacancies across all residential habilitation centers (RHCs) in order to downsize Fircrest School."

Citation of Existing Rules Affected by this Order: Repealing WAC 388-835-0135; and amending WAC 388-835-0085, 388-835-0090, 388-835-0100, 388-835-0115, and 388-835-0140.

Statutory Authority for Adoption: Chapter 71A.20 RCW, RCW 71A.12.080, 71A.20.140.

Other Authority: Section 205, chapter 25, Laws of 2003 1st sp.s.

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: In the 2003-2005 state operating budget bill (section 205, chapter 25, Laws of 2003 1st sp.s.), the state legislature provided funds for RHC consolidation and downsizing at the Fircrest School. In the budget detail documents, the legislature stated its intent that: "The department shall consolidate vacancies across all residential habilitation centers (RHCs) in order to downsize Fircrest School." The department has determined that the process of downsizing of Fircrest School must begin immediately in order for the department to remain within its budget allocation. Emergency rules are needed to assure the safety and welfare of residents of Fircrest School as the department establishes procedures to transfer residents of the school to other facilities or care settings.

Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 5, Amended 5, Repealed 1.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 5, Repealed 1.

Effective Date of Rule: Immediately.

December 24, 2003

Jim Schnellman

for Brian H. Lindgren, Manager

Rules and Policies Assistance Unit

3353.1
Chapter 388-837 WAC

RESIDENTIAL HABILITATION CENTER (RHC) ICF/MR PROGRAM


NEW SECTION
WAC 388-837-9005   What is the purpose of this chapter?   (1) The purpose of this chapter is to establish rules authorized by Title 71A RCW for RHC ICF/MR, developmental disabilities that:

(a) Regulate the purchase and provision of services in state operated intermediate care facility for the mentally retarded (ICF/MR); and

(b) Assure adequate ICF/MR care, service, and protection are provided through certification procedures; and

(c) Establish standards for providing habilitative training, health-related care, supervision, and residential services to eligible persons.

(2) Except where specifically referenced, this chapter supersedes and replaces any and all sections affecting ICF/MR facilities or programs contained in chapter 388-96 WAC.

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NEW SECTION
WAC 388-837-9015   What does a transfer from one RHC to another RHC mean?   A transfer means the discharge of a resident from the existing RHC and the admission to another RHC.

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NEW SECTION
WAC 388-837-9020   Do residents have a right to a hearing when transferring from a residential habilitation center (RHC) to another RHC?   Advance notice and planning does not include a right to a hearing for a resident when the department concludes that the facility where the resident resides cannot provide services due to:

(1) Decertification of the RHC;

(2) Revocation of the RHC's certification; or

(3) An emergency suspension of the RHC's certification;

(4) Partial closure of the RHC; or

(5) Closure of the RHC.

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NEW SECTION
WAC 388-837-9030   What rights are available to a resident regarding a proposed transfer from one RHC to another RHC?   (1) A resident, their guardian, next-of-kin, or responsible party must be notified in writing at least thirty days before any transfer occurs.

(2) The transfer notice must include the reason for the proposed transfer.

(3) A resident, their guardian, next of kin, or responsible party has a right to an informal administrative review before the division director or designee.

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NEW SECTION
WAC 388-837-9040   What rights are available to a resident regarding a proposed transfer from an RHC to the community, per RCW 71A.20.080?   DSHS must send a hearing request form with the notice of transfer.

(1) If the resident requests a hearing within the thirty-day time period, DSHS must not transfer the resident until a hearing decision is reached or appeal rights have been exhausted unless the transfer is warranted by the resident's health or safety needs or the welfare of the other residents.

(2) If the secretary or the secretary's designee concludes that the transfer is not appropriate, no further action is to be taken to transfer unless there is a change in the situation or circumstances surrounding the transfer request. If there is a change in the situation or circumstances, the request may be resubmitted.

(3) If the secretary or the secretary's designee affirms the decision to transfer the resident and no judicial review is filed within thirty days of the receipt of notice of transfer, DSHS must proceed with the planned action.

(4) If the secretary or secretary's designee affirms the decision to transfer the resident and a request for judicial review has been filed, any proposed transfer must be delayed until the appeal process is complete unless a delay jeopardizes the resident's health or safety or the welfare of other residents.

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3354.2
AMENDATORY SECTION(Amending WSR 01-10-013, filed 4/20/01, effective 5/21/01)

WAC 388-835-0085   Why is an individual transferred or discharged?   An individual admitted to a facility can be transferred or discharged only for:

(1) Medical reasons;

(2) A change in the individual's habilitation needs;

(3) The individual's welfare;

(4) The welfare of other residents; ((or))

(5) At the request of the resident or legal guardian;

(6) Partial closure of the facility; or

(7) Closure of the facility.

[Statutory Authority: RCW 71A.20.140. 01-10-013, 388-835-0085, filed 4/20/01, effective 5/21/01.]


AMENDATORY SECTION(Amending WSR 01-10-013, filed 4/20/01, effective 5/21/01)

WAC 388-835-0090   What is the basis of the decision to transfer or discharge an individual?   The decision to transfer or discharge an individual must be based on:

(1) An assessment of the resident in consultation with the service provider and the parent or guardian; and

(2) A review of the relevant records; or

(3) Partial closure of the facility; or

(4) Closure of the facility.

[Statutory Authority: RCW 71A.20.140. 01-10-013, 388-835-0090, filed 4/20/01, effective 5/21/01.]


AMENDATORY SECTION(Amending WSR 01-10-013, filed 4/20/01, effective 5/21/01)

WAC 388-835-0100   Why would an individual move?   An individual may move if:

(1) The services provided to an individual do not meet their needs;

(2) A facility's ICF/MR certification or license is revoked or suspended;

(3) Medical reasons dictate relocation;

(4) A resident's welfare would be improved;

(5) The welfare of the other residents would be enhanced;

(6) There is no payment for services provided to the resident during their stay at the facility; ((or))

(7) The resident and/or guardian make a formal request;

(8) The facility is partially closing; or

(9) The facility is closing.

[Statutory Authority: RCW 71A.20.140. 01-10-013, 388-835-0100, filed 4/20/01, effective 5/21/01.]


AMENDATORY SECTION(Amending WSR 01-10-013, filed 4/20/01, effective 5/21/01)

WAC 388-835-0115   Can a facility request that an individual be transferred?   Facilities can request that a resident be transferred for the following reasons:

(1) Medical reasons;

(2) A change in the individual's habilitation needs;

(3) The individual's welfare;

(4) The welfare of the other residents; ((or))

(5) Nonpayment for services provided to the resident during the resident's stay at the facility;

(6) The facility is partially closing; or

(7) The facility is closing.

[Statutory Authority: RCW 71A.20.140. 01-10-013, 388-835-0115, filed 4/20/01, effective 5/21/01.]


AMENDATORY SECTION(Amending WSR 01-10-013, filed 4/20/01, effective 5/21/01)

WAC 388-835-0140   Do residents always have a right to a hearing?   Advance notice and planning does not include a right to a hearing for a resident when the department concludes that the facility where the resident resides cannot provide Title XIX services due to:

(1) Termination of the facility's contract;

(2) Decertification of the facility;

(3) Nonrenewal of the facility's contract;

(4) Revocation of the facility's license; ((or))

(5) An emergency suspension of the facility's license;

(6) Partial closure of the facility; or

(7) Closure of the facility.

[Statutory Authority: RCW 71A.20.140. 01-10-013, 388-835-0140, filed 4/20/01, effective 5/21/01.]


REPEALER

     The following section of the Washington Administrative Code is repealed:
WAC 388-835-0135 What are DSHS responsibilities when it decides to transfer a resident?