WSR 12-05-074

EMERGENCY RULES

DEPARTMENT OF

SOCIAL AND HEALTH SERVICES
(Aging and Disability Services Administration)

[ Filed February 16, 2012, 2:41 p.m. , effective February 16, 2012, 2:41 p.m. ]


Effective Date of Rule: Immediately.

Purpose: The text of the rules filed as WSR 12-02-044 has not changed. This filing is a response to a lawsuit that was filed in Thurston County superior court on February 1, 2012: SEIU Healthcare 775NW v. Robin Arnold-Williams and DSHS, alleging that the emergency rule filing process for WSR 12-02-044 did not comply with rule-making requirements. The department of social and health services disagrees with those allegations. However, this CR-103E is provided to further clarify the basis for the emergency rules.

Effective December 30, 2011, the department amended WAC 388-106-0010 by adding and amending certain definitions related to informal supports. WAC 388-106-0210 was amended to include age guidelines that were needed to implement children's personal care changes that were initially made under WSR 11-23-053. These revisions were necessitated by the Washington state supreme court's decision in Samantha A. v. Department of Social and Health Services and serve the public interest by providing clients a way to better understand their award of personal care service hours.

This CR-103E cancels and supersedes WSR 12-02-044.

Citation of Existing Rules Affected by this Order: Amending WAC 388-106-0010 and 388-106-0210.

Statutory Authority for Adoption: RCW 74.08.090, 74.09.520.

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: On February 1, 2012, the Service Employees International Union filed a lawsuit challenging the adoption of changes to WAC 388-106-0010 and 388-106-0130 by emergency rule. SEIU Healthcare 775NW v. Robin Arnold-Williams and DSHS, Thurston County Superior Court, Docket No. 12-2-00195-0. The emergency rule filing process complied with rule-making requirement[s] and the department disagrees with the allegations made in the lawsuit. Nevertheless, this CR-103E is provided to further clarify the basis for the emergency rules.

Clarified Reasons for Changes Originally Made under WSR 12-02-044: The department revised its assessment process to allocate personal care services for children on a more individualized basis. The emergency rules are necessary in order to comply with state law following Washington state supreme court's decision in Samantha A. v. Department of Social and Health Services and serve the public interest by providing clients a way to better understand their award of personal care service hours that may have been adjusted during the individualized assessment process.

The changes to WAC 388-106-0010 and 388-106-0210 are necessary to comport with emergency amendments initially filed under WSR 11-23-082 on November 16, 2011. These rule changes were filed as soon as possible. Changes to WAC 388-106-0010 could not be included in the November 16, 2011, filing because, for unrelated reasons, it had been recently subject to permanent rule making. New changes to a recently adopted permanent rule cannot be made until the office of the code reviser incorporates the new or amended rule into the TITLE 388 WAC web site, which can take four to eleven weeks after the permanent rule-making order is filed.

This filing supersedes the CR-103E filed as WSR 12-02-044 on December 30, 2011.

Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 2, 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 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 0, Amended 2, Repealed 0.

Date Adopted: February 16, 2012.

Katherine I. Vasquez

Rules Coordinator

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 12-06 issue of the Register.

Washington State Code Reviser's Office