WSR 11-07-105

PROPOSED RULES

DEPARTMENT OF

SOCIAL AND HEALTH SERVICES
(Office of the Secretary)

[ Filed March 23, 2011, 11:08 a.m. ]

Original Notice.

Preproposal statement of inquiry was filed as WSR 10-07-059.

Title of Rule and Other Identifying Information: WAC 388-885-005 Purpose, 388-885-010 Definitions, 388-885-013 Limitations on reimbursement costs related to expert evaluations, 388-885-015 Limitations of funds, 388-885-025 Billing procedures, 388-885-030 Exceptions and 388-885-035 Reimbursement rate schedule; and proposed new section WAC 388-885-016 Matters for which reimbursement is not available.

Hearing Location(s): Office Building 2, Auditorium, DSHS Headquarters, 1115 Washington, Olympia, WA 98504 (public parking at 11th and Jefferson. A map is available at http://www1.dshs.wa.gov/msa/rpau/RPAU-OB-2directions.html

or by calling (360) 664-6094), on April 26, 2011, at 10:00 a.m.

Date of Intended Adoption: Not earlier than April 27, 2011.

Submit Written Comments to: DSHS Rules Coordinator, P.O. Box 45850, Olympia, WA 98504-5850, delivery 1115 Washington, Olympia, WA 98504, e-mail DSHSRPAURulesCoordinator@dshs.wa.gov, fax (360) 664-6185, by 5 p.m. on April 26, 2011.

Assistance for Persons with Disabilities: Contact Jennisha Johnson, DSHS rules consultant, by April 5, 2011, TTY (360) 664-6178 or (360) 664-6094 or by e-mail at jennisha.johnson@dshs.wa.gov.

Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: These existing rules require updating to better reflect current practices as they relate to the reimbursement of local agencies for their costs associated with the civil commitment process of sexually violent predators, and to implement cost-saving measures directed in ESB 6870 (Containing costs for services to sexually violent predators) and ESSB 6444 (2009-11 revised omnibus operating budget (2010 Supp.)).

Reasons Supporting Proposal: Washington state 2009-11 revised omnibus operating budget (2010 Supp.) ESSB 6444 - Section 211, Agency 300, Program 135, and Washington State Supreme Court decision No. 80570-9 re Detention of John L. Strand, Filed October 8, 2009.

Statutory Authority for Adoption: Chapter 71.09 RCW, RCW 72.01.090 and 34.05.350.

Rule is necessary because of state court decision, Washington State Supreme Court decision No. 80570-9 re Detention of John L. Strand, Filed October 8, 2009, does not mandate this change, but it establishes criteria that require inclusion to this proposal.

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: Cath Repp, P.O. Box 88450, Steilacoom, WA 98388-0646, (253) 583-5927; and Enforcement: Kelly Cunningham, P.O. Box 88450, Steilacoom, WA 98388-0646, (253) 583-5933.

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 for which a violation of which does not subject a person to a penalty or sanction, and serves only to set forth the agency's interpretation of statutory provisions it administers.

March 18, 2011

Katherine I. Vasquez

Rules Coordinator

4218.4
AMENDATORY SECTION(Amending WSR 08-19-042, filed 9/11/08, effective 10/12/08)

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 and apply to reimbursement for defense and prosecution activities.

These rules further establish reasonable limitations on expert expenditures when the state fund an expert for the prosecution, or defense for persons found indigent subject 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.

These rules do not preclude an agency or person from spending their own funds beyond what is subject to reimbursement under this chapter.

[Statutory Authority: Chapter 71.09 RCW and RCW 72.01.090. 08-19-042, 388-885-005, filed 9/11/08, effective 10/12/08. 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.]


AMENDATORY SECTION(Amending WSR 08-19-042, filed 9/11/08, effective 10/12/08)

WAC 388-885-010   Definitions.   (1) "Attorney cost" means the fully documented 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;

(c) Additional counsel, for the defense or prosecution, when additional defense counsel is approved by the trial judge for good cause; and

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

(2) "Civil commitment process" as used in this chapter refers to the following distinct phases of chapter 71.09 RCW commitments and for a period encompassing the ninety days before the phases denominated in subsections (d) and (e) of this section.

(a) Investigation and preparation of an RCW 71.09.030 filing (by the prosecution only).

(b) Completion of a seventy-two hour probable cause hearing under RCW 71.09.040.

(c) Completion of an initial civil commitment trial under RCW 71.09.060.

(d) Completion of annual review proceedings under RCW 71.09.090 which commences with the filing of an annual review report under RCW 71.09.070 and ends with a waiver of a show cause hearing by the resident or completion of the show cause hearing.

(e) Completion of a post-commitment conditional or unconditional release trial under RCW 71.09.090.

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

(((3))) (4) "Deposition" means the legal fact finding interview of a person under force of subpoena or by agreement of the parties.

(5) "Evaluation(s)" means the different types of evaluations that occur related to a person's commitment or detention under chapter 71.09 RCW are as follows:

(a) The "initial evaluation performed by the state" occurs under RCW 71.09.025 and happens before the person is detained at the SCC, usually occurring while the person is in prison, juvenile rehabilitation administration (JRA), a state mental hospital, a county jail, or in the community following commission of a recent overt act.

(b) The "initial evaluation performed by the defense" occurs under RCW 71.09.050 and occurs when authorized by the court.

(c) "Supplemental evaluations", as required by RCW 71.09.040, are performed for civil commitment trial purposes after a court finding of probable cause.

(d) "Post commitment evaluations", as required by RCW 71.09.070, 71.09.090, and 71.09.098, occur when the person qualifies for a conditional or unconditional release trial.

(e) "Partial evaluations performed by the defense" means an evaluation performed by the same evaluator less than twelve months after performing an initial evaluation or post commitment evaluation.

(6) "Evaluation by expert cost" is as described in WAC 388-885-013.

(((4))) (7) "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))) (8) "Investigative cost" means a cost incurred by a police agency or other investigative 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))) (9) "Medical cost" means a county-incurred extraordinary medical expense beyond the routine services of a jail.

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

(((8))) (11) "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)) his or her place of confinement.

(((9))) (12) "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;

(b) Court clerks;

(c) Bailiff services;

(d) Court reporter services;

(e) Transcript typing and preparation;

(f) Expert and nonexpert witnesses;

(g) ((Jury)) Juries; and

(h) Jail facilities.

[Statutory Authority: Chapter 71.09 RCW and RCW 72.01.090. 08-19-042, 388-885-010, filed 9/11/08, effective 10/12/08. 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.]


AMENDATORY SECTION(Amending WSR 08-19-042, filed 9/11/08, effective 10/12/08)

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 single comprehensive examination and/or a records review as defined in RCW 71.09.025, 71.09.040, 71.09.050, 71.09.070, 71.09.090 and 71.09.098 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)) for a person who is indigent or selected by the prosecution, 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.

(a) The department shall be provided notice of any request and have an opportunity to respond in writing and to be heard at a hearing to determine good cause for expert funding in excess of amounts allowed in WAC 388-885-035.

(b) If the respondent makes a claim of privilege regarding the information to be provided to support the finding of good cause the court may order that records supporting the determination of good cause be produced in camera for determination of the applicability of any claims of privilege and to decide the issue of good cause.

(c) Any claim of privilege made to the information covered herein is not waived by providing the documentation to DSHS.

(d) In making its finding of good cause the superior court shall consider and issue written findings on whether:

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

(((b))) (ii) 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))) (iii) The request is being ((interposed)) made for the purpose of delaying the proceeding; or

(((d))) (iv) 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)) if:

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

(b) For any charges related to an expert's 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;

(c) For an updated evaluation where the prior evaluation is less than twelve months old; or

(d) Evaluator costs associated with mental health or sex offender treatment services rendered to person committed or detained under chapter 71.09 RCW.

[Statutory Authority: Chapter 71.09 RCW and RCW 72.01.090. 08-19-042, 388-885-013, filed 9/11/08, effective 10/12/08.]


AMENDATORY SECTION(Amending WSR 08-19-042, filed 9/11/08, effective 10/12/08)

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

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

(2) Limit a county's reimbursement to costs of civil commitment ((trials or hearings)) proceedings as ((described under this chapter)) defined in WAC 388-885-010(2);

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

(4) Not ((pay)) reimburse a county for 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, until the department's biennial appropriation is expended.

[Statutory Authority: Chapter 71.09 RCW and RCW 72.01.090. 08-19-042, 388-885-015, filed 9/11/08, effective 10/12/08. 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.]


NEW SECTION
WAC 388-885-016   Matters for which reimbursement is not available.   The department will not reimburse under chapter 388-885 WAC for the costs of the following:

(1) Investigation or legal representation challenging the conditions of confinement at SCC.

(2) Investigation, legal representation, or reimbursement for the costs of making requests under the Public Records Act, chapter 42.56 RCW, and for the costs of records procured subject to the Public Records Act.

(3) Legal representation or advice provided regarding a grievance filed pursuant to SCC policy 204.

(4) Legal representation or advice provided regarding a behavioral management report pursuant to SCC policy 235 or 238.

(5) Investigation, legal representation, advice and associated costs regarding residents as defined in WAC 388-885-010 who have been criminally charged.

(6) Depositions conducted without a subpoena or by agreement of counsel, unless authorized by the court.

(7) A new full evaluation of a resident when the evaluator has previously conducted a full evaluation of the same person within the past twelve months, unless authorized by the court.

(8) After the appeal of the initial commitment proceeding, the department will not reimburse for appeal costs, the department does not pay for the costs associated with the appeal of the order of commitment or an appeal resulting from any proceeding thereafter. These costs are reimbursed by the State Office of Public Defense.

(9) Costs associated with finding or developing a different less restrictive alternative other than what the department supports, unless authorized by the court for good cause.

(10) Any form of training for attorneys, expert witnesses, or other persons including continuing legal education or workshops.

(11) Legal representation during a period not covered as part of the civil commitment process as defined in WAC 388-885-010(2).

(12) For expert evaluation services performed by any party who does not qualify as a "professionally qualified person" WAC 388-880-010.

(13) For mental health or sex offender treatment provider services, treatment or consultation rendered to a resident at the total confinement facility or a secure community transition facility or other less restrictive alternative setting by anyone licensed under title 18 RCW unless approved in advance, in writing, by the SCC superintendent.

(14) For the presence of more than a single attorney at any evaluation or interview unless the presence of a second attorney is specifically authorized by order of the court.

(15) Standby attorneys for pro se litigants are compensated only in so far as allowed for specific activities set forth in the court order which appointed them and for reimbursement purposes, that appointment may only be for matters defined in WAC 388-885-010(2) "civil commitment process".

[]


AMENDATORY SECTION(Amending WSR 08-19-042, filed 9/11/08, effective 10/12/08)

WAC 388-885-025   Billing procedure.   (1) When a county requests the department reimburse a county's costs, 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)) Comply with the department's required use of an auditable, itemized, detailed invoice billed in no more than a one-tenth of an hour increment. Records supporting the billed hours shall be maintained by attorneys, paralegals, investigators and experts for a period of five years after the service is rendered. Such documentation shall include what documents were created, if interviews were conducted, who was interviewed and how; ((and))

(d) ((Include the name of the person for whom the costs were incurred and the cause number when it exists)) In the event of a dispute over billed services, produce in camera the records supporting the billed hours to the court for determination of the applicability of any claims of privilege to the records and to decide the issue of payments if the claim of privilege is sustained; and

(e) Include in the invoice the name of the person by whom the costs were incurred and the cause number, when it exists, and identify at which state of the civil commitment process this service was rendered per WAC 388-885-010(2).

(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 receipt of itemized expenditures for services incurred to assure proper handling of the claim.

(5) When a county submits a reimbursement claim 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 for all items as defined in WAC 388-885-010 or otherwise 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)) before 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)) the department, or other state auditing service, for a period of ((thirty-six)) sixty months following the submission of the bill.

[Statutory Authority: Chapter 71.09 RCW and RCW 72.01.090. 08-19-042, 388-885-025, filed 9/11/08, effective 10/12/08. 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.]


AMENDATORY SECTION(Amending WSR 08-19-042, filed 9/11/08, effective 10/12/08)

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

(2) ((Exceptions may be allowed)) The secretary may allow exceptions on a case-by-case basis for:

(a) Unanticipated expenditures;

(b) ((For a rate or cost increase)) Evaluation related cap relief, related to a single commitment proceeding deemed truly unique in nature; or

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

(3) ((A request for exception may only be made by)) Only a county administration or an entity of county government that has been independently elected, and not ((from)) a sub-agency ((of a county)) or contractor to a county may request an exception. 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)) that does not follow the rules of this chapter unless the secretary or secretary's designee granted an exception before the claim was filed.

[Statutory Authority: Chapter 71.09 RCW and RCW 72.01.090. 08-19-042, 388-885-030, filed 9/11/08, effective 10/12/08. 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.]


AMENDATORY SECTION(Amending WSR 08-19-042, filed 9/11/08, effective 10/12/08)

WAC 388-885-035   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 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) Expert service:

(a) Evaluation by expert ((actual cost (travel and per diem per state schedule))), the reimbursement for an evaluation, including professional fees, travel, per diem, and all other costs, is capped at ten thousand dollars; and shall be reimbursed at an hourly reimbursement rate of not more than two hundred dollars per hour for evaluation activities including client interviews, document review, report preparations, pre-trial discovery activities (including additional document review, compelled interviews and declarations and consultation).

(b) Partial evaluations are capped at five thousand five hundred dollars and shall be reimbursed at an hourly reimbursement rate of not more than two hundred dollars per hour for evaluation activities including client interviews, document review, report preparations, pre-trial discovery activities (including additional document review, compelled interviews and declarations and consultation).

(c) Court testimony or depositions by the opposing party, is capped at an hourly reimbursement rate of two hundred fifty dollars per hour or fraction therof.

(d) Travel time related to court testimony or depositions by the opposing party, is capped at an hourly reimbursement rate of one hundred fifty dollars per hour or fraction thereof.

(e) Exclusive of testimony at trial or depositions, any expert services subsequent to or apart from the evaluation, in addition to the hourly rate caps, is capped at six thousand dollars.

(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)) Jurors actual compensation (travel and per diem per state schedule).

(12) Jail facilities' daily rate of thirty dollars.

(13) Incidentals - actual costs based on receipts.

[Statutory Authority: Chapter 71.09 RCW and RCW 72.01.090. 08-19-042, 388-885-035, filed 9/11/08, effective 10/12/08. 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 spelling error in the above section occurred in the copy filed by the agency and appears in the Register pursuant to the requirements of RCW 34.08.040.

Washington State Code Reviser's Office