WSR 08-15-057

PROPOSED RULES

DEPARTMENT OF

SOCIAL AND HEALTH SERVICES
(Special Commitment Center)

[ Filed July 14, 2008, 8:38 a.m. ]

Original Notice.

Preproposal statement of inquiry was filed as WSR 08-01-022.

Title of Rule and Other Identifying Information: Amending WAC 388-885-005 Purpose, 388-885-010 Definitions, 388-885-015 Limitations of funds, 388-885-020 Maximum allowable reimbursement for civil commitment costs, 388-885-025 Billing procedures, 388-885-030 Exceptions, and 388-885-035 Fee schedule; and new section WAC 388-885-013 Limitations on reimbursement costs related to expert evaluations.

Hearing Location(s): Blake Office Park East, Rose Room, 4500 10th Avenue S.E., Lacey, WA 98503 (one block north of the intersection of Pacific Avenue S.E. and Alhadeff Lane. A map or directions are available at http://www1.dshs.wa.gov/msa/rpau/docket.html or by calling (360) 664-6094), on August 26, 2008, at 10:00 a.m.

Date of Intended Adoption: Not earlier than August 27, 2008.

Submit Written Comments to: DSHS rules coordinator, P.O. Box 45850, Olympia, WA 98504-5850, delivery 4500 10th Avenue S.E., Lacey, WA 98503, e-mail DSHSRPAURulesCoordinator@dshs.wa.gov, fax (360) 664-6185, by 5:00 p.m. on August 26, 2008.

Assistance for Persons with Disabilities: Contact Jennisha Johnson, DSHS rules consultant, by August 19, 2008, TTY (360) 664-6178 or (360) 664-6094 or by e-mail at johnsjl4@dshs.wa.gov.

Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: The purpose of these proposed rule changes is to clarify our business practices and expectations as they pertain to county government obtaining cost reimbursements from DSHS for legal and expert evaluation costs pursuant to civil commitment proceedings under chapter 71.09 RCW.

Reasons Supporting Proposal: See above.

Statutory Authority for Adoption: Chapter 71.09 RCW, RCW 72.01.090.

Statute Being Implemented: Chapter 71.09 RCW.

Rule is not necessitated by federal law, federal or state court decision.

Name of Proponent: Department of social and health services, governmental.

Name of Agency Personnel Responsible for Drafting: Mark Davis, P.O. Box 88450, Steilacoom, WA 98388-0646, (253) 617-6283; Implementation and Enforcement: Linda Egge, P.O. Box 88450, Steilacoom, WA 98388-0646, (253) 583-5927.

No small business economic impact statement has been prepared under chapter 19.85 RCW. The department has analyzed the proposed rules and concluded that they pertain to state reimbursement paid to county governments and they do not impact small businesses. The preparation of a comprehensive small business economic impact statement is not required under RCW 19.85.030.

A cost-benefit analysis is not required under RCW 34.05.328. No cost-benefit analysis was prepared because these rules are an "interpretive rule" under RCW 34.05.328. A violation of this rule does not subject a person to a penalty or sanction, and the rule change serves only to set forth the agency's interpretation of statutory provisions it administers.

June 30, 2008

Stephanie E. Schiller

Rules Coordinator

4005.2
AMENDATORY SECTION(Amending Order 3263 [WSR 99-21-002], filed 10/6/99, effective 10/6/99)

WAC 388-885-005   Purpose.   These rules establish the standards and procedures for reimbursing counties for the cost incurred during civil commitment trial, annual evaluation, and review processes and release procedures related to chapter 71.09 RCW.

The department's reimbursement to counties is limited to appropriated funds and is intended to minimize primary or direct costs to counties for proceedings and related to civil commitment of sexually violent predators.

Indirect costs and costs incurred in excess of or different from those allowed by the itemized schedule of reimbursements as described in WAC 388-885-035 are the responsibility of the county.

[99-21-002, recodified as 388-885-005, filed 10/6/99, effective 10/6/99. Statutory Authority: RCW 43.20A.050. 91-21-027 (Order 3263), 275-156-005, filed 10/8/91, effective 11/8/91.]

Reviser's note: The bracketed material preceding the section above was supplied by the code reviser's office.
AMENDATORY SECTION(Amending Order 3736 [WSR 99-21-002], filed 10/6/99, effective 10/6/99)

WAC 388-885-010   Definitions.   (1) "Attorney cost" means the fully documented ((fee)) itemized hourly cost directly related to the violent sexual predator civil commitment process for:

(a) A single assigned prosecuting attorney;

(b) When the person is indigent, a single court-appointed attorney; ((and))

(c) Additional counsel, for the defense or prosecution, when additional defense counsel is approved by the trial judge for good cause((. Said fee includes the cost of paralegal services.)); and

(d) Paralegal services and other costs, itemized based on a schedule of reimbursements as described in WAC 388-885-035.

(2) "Department" means the department of social and health services.

(3) "Evaluation by expert cost" ((means a county-incurred service fee directly resulting from the completion of a comprehensive examination and/or a records review, by a single examiner selected by the county, of a person:

(a) Investigated for "sexually violent predator" probable cause;

(b) Alleged to be a "sexually violent predator" and who has had a petition filed; or

(c) Committed as a "sexually violent predator" and under review for release.

In the case where the person is indigent, "evaluation by expert cost" includes the fee for a comprehensive examination and/or records review by a single examiner selected by the person examined. When additional examiners are approved by the trial judge for good cause, "evaluation by expert cost" includes the cost of additional examiners)) is as described in WAC 388-885-013.

(4) "Incidental cost" means county-incurred efforts or costs that are not otherwise covered and are exclusively attributable and necessary to the trial of a person alleged to be a "sexually violent predator."

(5) "Investigative cost" means a cost incurred by a police agency or other investigative ((agency)) service in the course of investigating issues specific to:

(a) Filing or responding to a petition alleging a person is a "sexually violent predator;" or

(b) Testifying at a hearing to determine if a person is a "sexually violent predator."

(6) "Medical cost" means a county-incurred extraordinary medical expense beyond the routine services of a jail.

(7) "Secretary" means the secretary of the department of social and health services.

(8) "Transportation cost" means the cost a county incurs when transporting a person alleged to be, or having been found to be, a "sexually violent predator," to and from a sexual predator program facility.

(9) "Trial cost" means the costs a county incurs as the result of filing a petition for the civil commitment of a person alleged to be a "sexually violent predator" under chapter 71.09 RCW. This cost is limited to fees for:

(a) Judges((, including court clerk and bailiff services));

(b) Court ((reporter services)) clerk;

(c) ((Transcript typing and preparation)) Bailiff services;

(d) ((Expert and nonexpert witnesses)) Court reporter services;

(e) ((Jury; and)) transcript typing and preparation;

(f) ((Jail facilities)) Expert and nonexpert witnesses;

(g) Jury; and

(h) Jail facilities.

[99-21-002, recodified as 388-885-010, filed 10/6/99, effective 10/6/99. Statutory Authority: RCW 71.09.050 and 43.20A.050. 94-12-006 (Order 3736), 275-156-010, filed 5/19/94, effective 6/19/94. Statutory Authority: Chapter 71.09 RCW. 92-18-037 (Order 3447), 275-156-010, filed 8/27/92, effective 9/27/92. Statutory Authority: RCW 43.20A.050. 91-21-027 (Order 3263), 275-156-010, filed 10/8/91, effective 11/8/91.]

Reviser's note: The bracketed material preceding the section above was supplied by the code reviser's office.
NEW SECTION
WAC 388-885-013   Limitations on reimbursement costs related to expert evaluations.   (1) "Evaluation by expert cost" means a county-incurred itemized hourly service rate directly resulting from the completion of a comprehensive examination and/or a records review and other costs, itemized based on the schedule of reimbursements as described in WAC 388-885-035, by a single examiner selected and appointed by the court of a person who is indigent, when:

(a) Investigated for "sexually violent predator" probable cause;

(b) Alleged to be a "sexually violent predator" and who has had a petition filed; or

(c) Committed as a "sexually violent predator" and under review for release.

(2) The department will reimburse a county for costs related to the evaluation of an indigent person by an additional examiner only upon a finding by the superior court that such appointment is for good cause. In making its finding of good cause the superior court shall consider and issue written findings on whether:

(a) Any previous expert(s) appointed to assist the indigent person lack expertise to address a new area of concern;

(b) The request for an additional expert is being requested merely because the opinion of a prior expert was not favorable to respondent's position;

(c) The request is being interposed for the purpose of delaying the proceeding; or

(d) The previously appointed expert is unavailable for testimony at trial.

(3) The department will not reimburse a county for expert evaluation costs under the following circumstances:

(a) Where the appointed expert lacks appropriate qualifications as provided for in WAC 388-880-033; or

(b) For any charges related to international travel by an expert to or from a destination outside of North America, including but not limited to, airfare, meals, hourly rates, and accommodations.

[]


AMENDATORY SECTION(Amending Order 3736 [WSR 99-21-002], filed 10/6/99, effective 10/6/99)

WAC 388-885-015   Limitation of funds.   The department shall:

(1) Reimburse funds to a county when funds are available;

(2) Limit a county's reimbursement to costs of civil commitment trials or hearings as described under this chapter;

(3) Restrict a county's reimbursement to documented investigation, expert evaluation, attorney, transportation, trial, incidental, and medical costs;

(4) Not pay a county a cost under the rules of this section when said cost is otherwise reimbursable under law;

(5) Pay a county's claim for a trial or hearing occurring during each biennium in the order in which the claim is received ((at the office of accounting services, special commitment center)), until the department's biennial appropriation is expended.

[99-21-002, recodified as 388-885-015, filed 10/6/99, effective 10/6/99. Statutory Authority: RCW 71.09.050 and 43.20A.050. 94-12-006 (Order 3736), 275-156-015, filed 5/19/94, effective 6/19/94. Statutory Authority: RCW 43.20A.050. 91-21-027 (Order 3263), 275-156-015, filed 10/8/91, effective 11/8/91.]

Reviser's note: The bracketed material preceding the section above was supplied by the code reviser's office.
AMENDATORY SECTION(Amending Order 3736 [WSR 99-21-002], filed 10/6/99, effective 10/6/99)

WAC 388-885-020   Maximum allowable reimbursement for civil commitment cost.   (1) The department shall reimburse a county for actual costs incurred up to the maximum allowable rate as specified((:

(1) Attorney cost - Up to forty-nine dollars and forty-one cents per hour;

(2) Evaluation by expert cost - Actual costs, within reasonable limits, plus travel and per diem according to state travel policy;

(3) Trial costs:

(a) Judge - Up to forty-six dollars and five cents per hour;

(b) Court reporters - Up to twenty dollars and seventy-one cents per hour;

(c) Transcript typing and preparation services - Up to four dollars and thirteen cents per page;

(d) Expert witnesses - Actual costs within reasonable limits plus travel and per diem according to state travel policy;

(e) Nonexpert witnesses - Actual compensation, travel and per diem paid to witnesses, provided compensation is in accordance with chapter 2.40 RCW and state travel policy;

(f) Jurors - Actual compensation, travel, and per diem paid to jurors provided compensation is in accordance with chapter 2.36 RCW and state travel policy;

(g) Jail facilities - Thirty dollars per day.

(4) Investigative cost - Up to twenty dollars and sixty-six cents per hour. Medical costs - Up to fifty dollars per day, not to exceed five consecutive days; and

(5) Transportation cost - Actual compensation paid to transport staff, plus mileage and per diem at the rate specified in the state travel policy)) in a biennial reimbursement rate schedule created and maintained by the department and approved by the legislature for reimbursement rates and expenses authorized under this chapter.

(2) The reimbursement schedule shall be developed and reviewed by the department for adequacy each biennium.

(a) In developing the reimbursement schedule, the special commitment center will accept input and comment from the public and counties in the form of written substantive documented evidence that reflects a need to change the reimbursement rates found in WAC 388-885-035.

(b) Substantive evidence may be submitted to the special commitment center during the month of June on even numbered years.

(c) Evidence of need should be sent to: DSHS Special Commitment Center, Attn: Chief Financial Officer, P.O. Box 88450, Steilacoom, WA 98388-0646.

(d) Evidence of need will be compiled and reviewed for reimbursement rate change consideration and budget proposal recommendations.

(3) A revised reimbursement schedule shall be presented for legislative review each biennial year as part of the budget proposal for the special commitment center.

(4) When the reimbursement schedule or the related budget is approved by the legislature:

(a) The reimbursement schedule rates found in WAC 388-885-035 will be updated;

(b) A notice of the revised reimbursement rates will be published by the department and sent to each county public defender and prosecutor's office; and

(c) The reimbursement schedule shall be included in any memorandum of understanding, contract, or other document related to reimbursements under this rule which may be communicated by the special commitment center, or entered into between the special commitment center and the counties.

(5) Included in the reimbursement schedule shall be rates for:

(a) Attorney fees;

(b) Legal assistant/paralegal;

(c) Evaluation by expert costs, reimbursable according to the nature of the work performed;

(d) Trial costs, to include the trial judge, court reporters, bailiff, court clerk, transcript preparation services, and compensation for nonexpert witnesses and jurors;

(e) Investigative services;

(f) Medical costs; and

(g) Jail costs.

(6) Travel costs and per diem shall be reimbursed for investigators, attorneys, judges, legal assistant/paralegal, expert evaluators, nonexpert witnesses, jurors, and transporting staff. Reimbursement rates shall be in accordance with applicable state law and state travel policy.

(7) With the submission of an itemized invoice, attorneys and expert evaluators and expert witnesses may also be reimbursed for reasonable time spent in travel.

[99-21-002, recodified as 388-885-020, filed 10/6/99, effective 10/6/99. Statutory Authority: RCW 71.09.050 and 43.20A.050. 94-12-006 (Order 3736), 275-156-020, filed 5/19/94, effective 6/19/94. Statutory Authority: Chapter 71.09 RCW. 92-18-037 (Order 3447), 275-156-020, filed 8/27/92, effective 9/27/92. Statutory Authority: RCW 43.20A.050. 91-21-027 (Order 3263), 275-156-020, filed 10/8/91, effective 11/8/91.]

Reviser's note: The bracketed material preceding the section above was supplied by the code reviser's office.
AMENDATORY SECTION(Amending Order 3736 [WSR 99-21-002], filed 10/6/99, effective 10/6/99)

WAC 388-885-025   Billing procedure.   (1) When a county requests the department reimburse a county's cost, the county shall:

(a) Make a claim using the state of Washington invoice voucher, Form A 19 1-A;

(b) Attach to the claim necessary documentation, support, and justification materials (the department may require use of an itemized invoice);

(c) Report expenses billed by the hour in one-quarter hour increments unless smaller increments are provided to the county by the vendor; and

(d) Include the name of the person for whom the costs were incurred and the cause number when it exists.

(2) The department may subject a county's claim documentation to periodic audit at the department's discretion.

(3) Only an authorized administrator, or the county administrator's designee, may submit to the department a request for a county's cost reimbursement.

(4) A county shall submit a reimbursement claim to the department within thirty days of ((final costs)) receipt of itemized expenditures for services incurred to assure proper handling of the claim.

(5) When a county submits a reimbursement claim((, the county shall submit a reimbursement claim to the special commitment center, offices of accounting services)) on a state invoice voucher (Form A-19 1-A) sent to the Special Commitment Center, Attn: Business Office, P.O. Box 88450, Steilacoom, WA 98388-0646.

(6) If the department's reimbursement appropriation becomes exhausted before the end of a biennium, a county may continue to make a claim for reimbursement. The department may use the reimbursement claim to justify a request for adequate department funding during future biennia.

(7) Claims for reimbursement of costs associated with the subject of this rule will not be accepted if the span of time between the time the services were rendered and the bill was submitted is greater than twelve months.

(8) When the reimbursement fee schedule in WAC 388-885-035 changes following legislative approval there is a transitional period where bills are being received for services rendered prior to the approved increase to the reimbursement schedule rates, such as, bills received for services rendered shall be paid based on the reimbursement schedule rate that existed at the time services were rendered, not the rate that exists at the time the bill is submitted to SCC.

(9) In submitting bills for reimbursement under this rule, the billing entity agrees to maintain records of their billed services and make those records available for auditing by DSHS, or other state auditing service, for a period of thirty-six months following the submission of the bill.

[99-21-002, recodified as 388-885-025, filed 10/6/99, effective 10/6/99. Statutory Authority: RCW 71.09.050 and 43.20A.050. 94-12-006 (Order 3736), 275-156-025, filed 5/19/94, effective 6/19/94. Statutory Authority: RCW 43.20A.050. 91-21-027 (Order 3263), 275-156-025, filed 10/8/91, effective 11/8/91.]

Reviser's note: The bracketed material preceding the section above was supplied by the code reviser's office.
AMENDATORY SECTION(Amending Order 3736 [WSR 99-21-002], filed 10/6/99, effective 10/6/99)

WAC 388-885-030   Exceptions.   (1) The secretary may grant exceptions to the rules of this chapter. Exceptions granted by the secretary may not include exceptions to the biennial reimbursement rate schedule which is set by legislative mandate.

(2) ((A county seeking an exception shall request the exception, in writing from the secretary or secretary's designee)) Exceptions may be allowed on a case-by-case basis for:

(a) Unanticipated expenditures;

(b) For a rate or cost increase related to a single commitment proceeding; or

(c) For a new type or class of expenditure.

(3) A request for exception may only be made by a county administration or an entity of county government that has been independently elected, not from a sub-agency of a county or contractor to a county. A county seeking an exception from the secretary shall request the exception, in writing, to the secretary, through the chief financial officer of the special commitment center.

(4) The department shall deny a claim which does not follow the rules of this chapter unless the secretary or secretary's designee granted an exception before the claim was filed.

[99-21-002, recodified as 388-885-030, filed 10/6/99, effective 10/6/99. Statutory Authority: RCW 71.09.050 and 43.20A.050. 94-12-006 (Order 3736), 275-156-030, filed 5/19/94, effective 6/19/94. Statutory Authority: RCW 43.20A.050. 91-21-027 (Order 3263), 275-156-030, filed 10/8/91, effective 11/8/91.]

Reviser's note: The bracketed material preceding the section above was supplied by the code reviser's office.
AMENDATORY SECTION(Amending Order 3263 [WSR 99-21-002], filed 10/6/99, effective 10/6/99)

WAC 388-885-035   ((Effective date)) Reimbursement rate schedule.   When a county submits a reimbursement claim according to this chapter, the claim shall be only for costs incurred as defined in this chapter((, on or after July 1, 1990)) and for the rates provided in this schedule. This schedule of reimbursement rates is effective as of July 1, 2007.

(1) Attorney per hour rate of eighty-five dollars and sixty-five cents (travel and per diem per state schedule).

(2) Legal assistant/paralegal per hour rate of forty-six dollars (travel and per diem per state schedule).

(3) Investigator per hour rate of forty-six dollars (travel and per diem per state schedule).

(4) Evaluation by expert actual cost (travel and per diem per state schedule).

(5) Judge per hour rate of forty-six dollars and five cents.

(6) Court clerk actual hourly salary.

(7) Bailiff actual hourly salary.

(8) Court reporter per hour rate of twenty dollars and seventy-one cents (transcript preparation per page rate of four dollars and thirteen cents).

(9) Expert witnesses actual cost (travel and per diem per state schedule).

(10) Nonexpert witnesses actual cost (travel and per diem per state schedule).

(11) Juror's actual compensation (travel and per diem per state schedule).

(12) Jail facilities daily rate of thirty dollars.

(13) Incidentals - actual costs based on receipts.

[99-21-002, recodified as 388-885-035, filed 10/6/99, effective 10/6/99. Statutory Authority: RCW 43.20A.050. 91-21-027 (Order 3263), 275-156-035, filed 10/8/91, effective 11/8/91.]

Reviser's note: The bracketed material preceding the section above was supplied by the code reviser's office.

Washington State Code Reviser's Office