EMERGENCY RULES
SOCIAL AND HEALTH SERVICES
(Aging and Disability Services Administration)
Purpose: Revise the existing emergency rule, filed as WSR 04-21-062, to include provisions for children under the age of six. WSR 04-21-062 inadvertently excluded this population. These rules limit the required inventory of client and agency planning (ICAP) eligibility review of persons eligible for and receiving services from the Division of Developmental Disabilities (DDD); expand eligibility criteria to retain eligibility for persons not meeting current ICAP scores and clarify language to prevent incorrect decisions of denial or termination. A notice of intent to adopt rules has been filed as WSR 02-07-107 to adopt permanent rules. Constituent meetings and constituent feedback are occurring and the intent is to file the CR-102 proposed rule-making notice soon.
Citation of Existing Rules Affected by this Order: Amending WAC 388-825-030.
Statutory Authority for Adoption: RCW 71A.12.030, 71A12.120 [71A.12.120].
Other Authority: Chapter 71A.12 RCW.
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: When the ICAP is readministered, many clients lose eligibility and services necessary for their or the community's health and safety. These rules eliminate the required ICAP reviews every twenty-four months for persons currently eligible under ICAP rules and who are receiving paid services from DDD, thus preventing their termination from DDD paid services until permanent rules can be adopted. Other amended ICAP review times will better ensure transition of services.
Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 0, Repealed 0.
Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.
Number of Sections Adopted on the Agency's Own Initiative: New 0, Amended 0, Repealed 0.
Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 1, Repealed 0.
Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0; Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 0, Amended 1, Repealed 0.
Date Adopted: November 15, 2004.
Brian H. Lindgren, Manager
Rules and Policies Assistance Unit
3428.5(a) A condition defined as mental retardation, cerebral palsy, epilepsy, autism, or another neurological or other condition as described under WAC 388-825-030;
(b) Originates before the individual reaches eighteen years of age;
(c) Is expected to continue indefinitely; and
(d) Results in a substantial handicap.
(2) Mental retardation is a condition resulting in significantly subaverage general intellectual functioning as evidenced by:
(a) A diagnosis of mental retardation documented by a licensed psychologist or certified school psychologist; and
(b) A substantial handicap when the individual has an intelligence quotient score of more than two standard deviations below the mean using the Stanford-Binet, Wechsler, or Leiter International Performance Scale; and
(c) An intelligence quotient score which is not:
(i) Expected to improve with treatment, instruction, or skill acquisition above the established level; or
(ii) Attributable to mental illness or other psychiatric condition; and
(d) Meeting the requirements of developmental disability under subsection (1)(b) and (c) of this section.
(3) Cerebral palsy is a condition evidenced by:
(a) A diagnosis of cerebral palsy by a licensed physician; and
(b) A substantial handicap when, after forty-eight months of age:
(i) An individual needs direct physical assistance in two or more of the following activities:
(A) Eating;
(B) Dressing;
(C) Bathing;
(D) Toileting; or
(E) Mobility; or
(ii) An individual meets the requirements under subsection (6)(b) of this section; and
(c) Meeting the requirements under subsection (1)(b) and (c) of this section.
(4) Epilepsy is a condition evidenced by:
(a) A diagnosis of epilepsy by a board-eligible neurologist, including documentation the condition is chronic; and
(b) The presence of partially controlled or uncontrolled seizures; and
(c) A substantial handicap when the individual:
(i)(A) Requires the presence of another individual to monitor the individual's medication, and is certified by a physician to be at risk of serious brain damage/trauma without direct physical assistance from another individual; or
(B) In the case of individuals eighteen years of age or older only, requires the presence of another individual to monitor the individual's medication, and is unable to monitor the individual's own medication resulting in risk of medication toxicity or serious dosage side effects threatening the individual's life; or
(ii) Meets the requirements under subsection (6)(b) of this section; and
(d) Meeting the requirements under subsection (1)(b) and (c) of this section.
(5) Autism is a condition evidenced by:
(a) A specific diagnosis, by a board-eligible psychiatrist or licensed clinical psychologist, of autistic disorder, a particular diagnostic subgroup of the general diagnostic category pervasive developmental disorders; and
(b) A substantial handicap shown by:
(i) The presence of significant deficits of social and communication skills and marked restriction of activities of daily living, as determined by one or more of the following persons with at least one year's experience working with autistic individuals:
(A) Licensed psychologists;
(B) Psychiatrists;
(C) Social workers;
(D) Certified communication disorder specialists;
(E) Registered occupational therapists;
(F) Case managers;
(G) Certificated educators; and
(H) Others; or
(ii) Meeting the requirements under subsection (6)(b) of this section; and
(c) Meeting the requirements under subsection (1)(b) and (c) of this section.
(6) Another neurological or other condition closely related to mental retardation, or requiring treatment similar to that required for individuals with mental retardation is a condition evidenced by:
(a)(i) Impairment of the central nervous system as diagnosed by a licensed physician; and
(ii) A substantial handicap when, after forty-eight months of age, an individual needs direct physical assistance with two or more of the following activities:
(A) Eating;
(B) Dressing;
(C) Bathing;
(D) Toileting; or
(E) Mobility; and
(iii) An intelligence quotient score of at least one and one-half standard deviations below the mean, using the Wechsler Intelligence Scale, the Stanford-Binet, or the Leiter International Performance Scale; and
(iv) Meeting the requirements under subsection (1)(b) and (c) of this section; or
(b) A condition evidenced by:
(i) An intelligence quotient score at least one and one-half standard deviations below the mean, using the Wechsler Intelligence Scale, the Stanford-Binet, or the Leiter International Performance Scale; or
(ii) If the individual's intelligence score is higher than one and one-half standard deviations below the mean, then current or previous eligibility for participation in special education, under WAC 392-172-114 through 392-172-150, shall be demonstrated. Such participation shall not currently or at eighteen years of age be solely due to one or more of the following:
(A) Psychiatric impairment;
(B) Serious emotional/behavioral disturbance; or
(C) Orthopedic impairment; and
(iii) A substantial handicap when a standard score of more than two standard deviations below the mean in each of four domains of the adaptive behavior section of the Inventory for Client and Agency Planning (ICAP) is obtained, the domains identified as:
(A) Motor skills;
(B) Social and communication skills;
(C) Personal living skills;
(D) Community living skills; and
(iv) There is no evidence of other conditions or impairments unrelated to the eligible condition currently affecting adaptive functioning;
(v) Meets the requirements under subsection (1)(b) and (c) of this section;
(vi) A child who does not meet the ICAP scoring criteria in (iii) above, can retain eligibility if the child meets the criteria in (viii) below, if the child is currently eligible under WAC 388-825-030 (6)(c);
(vii) The ICAP is ((administered at least every
twenty-four months; and
(v) Is not attributable to mental illness, personality and behavioral disorders, or other psychiatric conditions; and
(vi) Meets the requirements under subsection (1)(b) and (c) of this section; or)) readministered to eligible persons in the following circumstances:
(A) Prior to age eighteen if the child is receiving paid services from the division of developmental disabilities (DDD); or
(B) Prior to transition from foster care into adult services at age eighteen or older; or
(C) Prior to the initial authorization of DDD paid services for persons not currently receiving paid services from DDD; or
(D) If the department discovers the evidence used to make the most recent eligibility determination is insufficient, in error, fraudulent, or new information becomes available that does not support your current eligibility.
(viii) Persons previously eligible under subsection (6)(b) of this section who are found ineligible under subsection (6)(b)(vii) of this section will retain eligibility for DDD if they meet all of the following criteria in (A), (B), and (C) below:
(A) There is evidence of a diagnosis of a condition or disorder resulting in significant limitations in both cognitive and adaptive functioning:
(I) The diagnosis of the condition or disorder must be made by a licensed physician, licensed psychologist or neurologist and is due to a neurological condition, central nervous system disorder involving the brain or spinal column, or chromosomal disorder.
(II) The diagnosis is excluded if it is a psychiatric disorder that has not been scientifically established as due to a neurological condition, central nervous system disorder involving the brain or spinal column, or chromosomal disorder.
(B) There is evidence that the eligible condition or disorder results in significant limitations in cognitive functioning as evidenced by a full scale intelligence quotient (FSIQ) of 1.5 or more standard deviations below the mean. If the person does not meet this FSIQ evidence, then there must be evidence of:
(I) A delay of at least twenty-five percent of the chronological age in two academic areas at the time of the most current testing; or
(II) In the absence of school records to substantiate (B)(I) of this subsection, the department may review and accept other information.
(C) If criteria is met under (A) and (B) above, and there is no evidence of other conditions or impairments unrelated to the eligible condition currently affecting adaptive functioning, the following evidence will determine if the eligible condition or disorder results in a substantial limitation in adaptive functioning:
(I) A Vineland administered by a qualified person within the past two years resulting in an adaptive behavior composite score of sixty-nine; or
(II) An ICAP administered by the department resulting in a broad independence score at or below the score specific to the age of the applicant at the time of the administration of the ICAP. The score specific to age is as follows:
| Age | Score at or below |
| 6 | 449 |
| 7 | 456 |
| 8 | 463 |
| 9 | 469 |
| 10 | 476 |
| 11 | 482 |
| 12 | 487 |
| 13 | 492 |
| 14 | 497 |
| 15 | 501 |
| 16 | 505 |
| 17 and older | 509 |
(c) A child under six years of age at risk of developmental disability, as measured by developmental assessment tools and administered by qualified professionals, showing a substantial handicap as evidenced by one of the following:
(i) A delay of at least twenty-five percent of the chronological age in one or more developmental areas between birth and twenty-four months of age; or
(ii) A delay of at least twenty-five percent of the chronological age in two or more developmental areas between twenty-five and forty-eight months of age; or
(iii) A delay of at least twenty-five percent of the chronological age in three or more developmental areas between forty-nine and seventy-two months of age; and
(iv) Such eligibility shall be subject to review at any time, but at least at thirty-six months of age and at least seventy-two months of age;
(v) Developmental areas as described in subsection (6)(c) of this section are:
(A) Fine or gross motor skills;
(B) Self-help skills;
(C) Expressive and receptive communication skills, including American sign language skills;
(D) Social skills; and
(E) Cognitive, academic, or problem-solving skills.
(vi) Qualified professionals, as described in subsection (6)(c) of this section, include, but are not limited to, the following professionals with at least one year's experience and training in the field of child development and preferably in the area of developmental disabilities:
(A) Licensed physicians;
(B) Licensed psychologists;
(C) Certified communication disorder specialists;
(D) Registered occupational therapists;
(E) Licensed physical therapists;
(F) Case managers;
(G) Registered public health nurses; and
(H) Educators.
(vii) Any standardized developmental assessment tool may be used if the tool:
(I) Is reasonably reliable and valid by professional standards; and
(II) Demonstrates the information required to make a determination of the developmental delay; or
(d) A child under six years of age having a diagnosis of Down Syndrome.
[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, § 388-825-030, filed 7/25/02, effective 8/25/02; 99-19-104, recodified as § 388-825-030, filed 9/20/99, effective 9/20/99. Statutory Authority: RCW 71A.10.020. 92-04-004 (Order 3319), § 275-27-026, filed 1/23/92, effective 2/23/92. Statutory Authority: RCW 71.20.070. 89-06-049 (Order 2767), § 275-27-026, filed 2/28/89.]