WSR 15-11-067 PROPOSED RULES DEPARTMENT OF CORRECTIONS [Filed May 19, 2015, 9:13 a.m.]
Supplemental Notice to WSR 15-06-009.
Preproposal statement of inquiry was filed as WSR 14-21-090.
Title of Rule and Other Identifying Information: Chapter 137-80 WAC, Institutional industries, there are no changes to the rules from the previous filing.
Hearing Location(s): Edna Lucille Goodrich (ELG) Building, 7345 Linderson Way S.W., Room 1028 B/C, Tumwater, WA 98501, on June 23, 2015, at 2 p.m.
Date of Intended Adoption: June 29, 2015.
Submit Written Comments to: John Nispel, P.O. Box 41114, Olympia, WA 98504-1114, e-mail john.nispel@doc.wa.gov, fax (360) 664-2009, by June 22, 2015.
Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: To reflect changes to the department of corrections (DOC) institutional industries programs. Achieve more consistent operation of institutional industries programs.
Reasons Supporting Proposal: References to DOC policy should be accurate.
Statutory Authority for Adoption: RCW 72.01.090.
Statute Being Implemented: RCW 72.09.100.
Rule is not necessitated by federal law, federal or state court decision.
Name of Proponent: DOC, governmental.
Name of Agency Personnel Responsible for Drafting, Implementation, and Enforcement: Debra Eisen, Headquarters, (360) 725-8363.
A small business economic impact statement has been prepared under chapter 19.85 RCW.
Small Business Economic Impact Statement
A. INTRODUCTION: Under RCW 19.85.020 Definitions, subsection (3) "Small business" means any business entity, including a sole proprietorship, corporation, partnership, or other legal entity, that is owned and operated independently from all other businesses, and that has fifty or fewer employees.
DOC did not include a "small business economic impact statement" (SBEIS) in its original February 20, 2015, publication of the CR-102 relating to chapter 137-80 WAC, Institutional industries, for two reasons:
1. Chapter 137-80 WAC relates to low-cost offender work crew services that are almost exclusively available to nonprofit corporations and government entities which are not generally referred to, thought of, or described as "small businesses"; and
2. Use of offender work crew services is voluntary. Businesses are not required to use the service. The changes proposed will only effect [affect] those eligible nonprofits and government entities that choose voluntarily to contract with DOC for low-cost labor provided by offenders. For-profit small businesses may not, by law, use Class IV or Class V offender work crew services.
Since publication of the CR-102, it was determined that the words, "other legal entity" in the definition of "small business" under RCW 19.85.020, may be construed to include nonprofit corporations and government entities. Therefore, DOC has filed a supplemental CR-102 to include an SBEIS and a cost-benefit analysis.
B. ECONOMIC IMPACT: An SBEIS requires a brief description of the fiscal impact on small businesses brought about by the compliance requirements in changes proposed to chapter 137-80 WAC. Specifically:
1. Recordkeeping: Each nonprofit and government entity (user) will be required to work with the department of labor and industries (L&I) to add the L&I Risk Classification Code, (4908 or 7203) for the type of offender services received, to its own account with L&I. Users will have to complete, sign and submit L&I "F213-112-000 application for elective coverage" to L&I to initiate the process. This will ensure the legality of the user paying the offender's L&I insurance premiums directly to L&I.
2. Reporting to L&I: Once each calendar quarter, users of work crew services must report the total number of hours during the previous quarter that offenders provided services to that user. At that same time, users must pay L&I the total cost of offender insurance premiums for each hour worked by an offender during the previous quarter.
Total hours = number of offenders X hours worked by offenders during the previous quarter.
Total cost = total offender hours worked during the previous quarter X L&I hourly premium.
Currently, DOC invoices users of offender work crew services for the total number of offender hours worked during each pay period. It is anticipated that such reporting will continue. Users should be able to add the number of hours invoiced during a quarter to obtain the data needed to submit their quarterly reports and payment to L&I.
For 2015: (a) DOC Class IV Prison Work Crews = Risk Classification Code 4908, Inmates of Adult Honor Camps - L&I coverage costs $.3511 per offender/per hour. Offenders on Class IV work crews reside in Washington state prisons.
(b) DOC Class V Community Service Crews = Risk Classification Code 7203, Community Service Workers - L&I coverage costs $.4278 per offender/per hour. Offenders on Class V crews reside in a work release facility or on their own in the community.
3. Other Compliance Requirements: (a) Provide relevant job-specific and site-specific safety training to offenders;
(b) Supervise the work for compliance with project requirements; and
(c) Conduct an advance hazardous conditions and materials assessment, in accordance with chapter 49.17 RCW, Washington Industrial Safety and Health Act, for each distinct project and report the results, in writing, to DOC using form DOC 03-247 (Rev. 10/22/12) or other that requires the hazard location, the hazard type, the level of risk and seriousness of potential injury, and whether particular types of personal protective equipment are necessary.
L&I will, upon request and at no cost, perform workplace hazards inspections and report its findings. Users of offender services may have L&I perform the required workplace hazards inspections if and when the proposed changes to chapter 137-80 WAC are approved.
4. Professional Services That a Small Business Will Need to Comply: Probably none, however, the need for clerical or work project oversight services will depend upon the size and structure, capacity and ability of each nonprofit or government entity using offender services. It is therefore not possible for DOC to estimate what, if any, additional professional services a user may require.
5. Cost of Compliance:
(a) Expenses:
(1) Users of work crew services may experience an increase in the cost of general liability insurance. Insurance companies may charge more for such coverage because:
i. The payroll has increased with the addition of offender workers; and
ii. A rise of the possibility of tort claims resulting from the actions or omissions of offenders during the performance of services for the nonprofit or government entity.
(2) There may be increased costs associated with the three components of number 3, "Other compliance requirements:" above. However, such costs, if any, will be project dependent. This is because the capacity and ability of each nonprofit or government entity to perform those compliance requirements will differ depending upon the size and structure of the entity. The complexity of offender services will also differ depending upon the nature of each project. Therefore, it is not possible for DOC to estimate what, if any, additional costs may be incurred.
(b) Saving: L&I expects a downward cost adjustment for offender worker L&I coverage from those rates now paid, once offender risk classifications are added to users' L&I accounts.
(c) Insurance Coverage: While there may be a rise in the cost of general liability insurance premiums, the actual insurance coverage will be far greater. A claim resulting from an incident involving an offender, for which such involvement is not reported, would most likely not be covered by any insurer learning of the offender involvement. The nonprofit or government entity would bear the entire cost of incident related damages apportioned to it. Without openness about participation of offender workers, the nonprofit or government entity is effectively not insured and may be putting its financial solvency at risk.
6. Based on Input Received, Will Compliance Cause Business[es] to Lose Sales or Revenue? Possible revenue loss. A few users have told DOC that offender work crew services are used as their "matching contribution" to meet requirements of grants that they receive. Further, that they fear that the transfer of liability, brought about by adding offender risk classifications to user L&I accounts, may lead them to conclude that it is no longer advantageous to use offender services. In which case, they will have to find other "matching contributions" or lose grant funding.
7. Disproportionate Cost Impact on Small Businesses? Whether large or small, nonprofit or government users of offender work crew services will pay the same rate for offender L&I coverage and be required to follow all of the same requirements. Except that those eligible for "good-will work projects" (see #8 below) may receive offender services at no charge.
8. Steps Taken by DOC to Reduce the Costs of the Rule on Small Businesses: Although users of offender work crew services do so voluntarily, the WAC changes proposed include the designation of Class IV "good-will work projects" for which DOC will pay offender wages and the cost of offender L&I insurance coverage. The eligibility criteria for good-will services will be established by the DOC secretary. Examples of possible eligibility criteria include: Altruistic projects to enhance quality of life in the community; economy of scale or scope; links to training or skill development for offender reentry; and project cost and complexity.
9. A Description of How the Agency Will Involve Small Businesses in the Development of the Rule: Based upon stakeholder public testimony and written comments DOC will consider revisions to its proposed WAC changes.
10. A List of Industries That Will Be Required to Comply with the Rule: Any public benefit nonprofit, local government entity or federally recognized Indian tribe in Washington state, that chooses to use offender work crew services, must comply. Use of offender work crews is voluntary.
11. An Estimate of the Number of Jobs That Will Be Created or Lost as the Result of Compliance with the Proposed Rule: Likely none, but impact on jobs must be attributed to each user's initial funding base or structure for positions whether operational, direct or indirect, matching, grant funded or other, all of which is unknown to DOC.
Preliminary Cost-Benefit Analysis Under RCW 34.05.328
ISSUE: Are the probable qualitative and quantitative benefits of the rule greater than its probable costs?
A. Please see economic impact statement (5), cost of compliance, above. Proposed changes to the WAC may result in users of offender services experiencing an increase in the amount paid for general liability insurance coverage. Exactly how much more is not known but, as with all insurance coverage, the amount will likely differ due to each nonprofit and government entity's own insurance claim history.
While a possible rise in the cost of general liability insurance coverage is a regrettable and unintended consequence, any such increase must be viewed in context:
1. Use of offender services is voluntary. Nonprofits and government entities are not required to use offender services. Use will remain voluntary, whether or not changes to the WAC are adopted.
2. Use of offender Class IV and Class V services is limited to public benefit nonprofits and government entities and made available to them at greatly reduced rates.
3. DOC risk management personnel expects that general liability insurance will remain available to users after insurers are informed that offenders are included. If such coverage is not available from a user's current insurance company, then by another company willing to insure against that risk.
4. It costs approximately $148 per day, including payment of L&I premiums, for eight hours of work from a crew of ten offender workers providing Class IV services. (Plus $.56 per mile to transport the crew.)
For example:
Offender crew total: $148 per day
5. It costs $758 per day for eight hours of work from a crew of ten nonoffender workers paid the Washington state minimum wage of $9.47 per hour. Payment of L&I premiums is not included because the rate is unknown, but it will almost assuredly be higher than the rates established for offender risk classifications #4908 and #7203.
B. Department Conclusion: The economic benefits of using offender services outweigh any increase in direct costs due to changes in the controlling WAC.
A major concern expressed by stakeholders is the possibility of increased cost for general liability insurance coverage or of losing such coverage altogether. In response, DOC posits the following example:
If a user of offender services currently pays $5,000 per year for liability insurance and that rate increases by twenty-five percent to $6,250 per year, if and when the proposed WAC changes are adopted, it is more cost-effective for that user to continue to use Class IV offender services then [than] to obtain the same or similar services elsewhere.
The computations in Section A above show the difference in the cost of a day of work by ten offenders, ($148.00) versus ten nonoffenders, ($758.00) to be more than $600 per day. Using the hypothetical example of a twenty-five [percent] increase in the cost of general liability insurance, a $1,250 increase in the cost of such insurance could be offset by two days of offender vs. nonoffender services.
Finally, users of offender services that inform insurance providers that offenders are among those to be covered may be more certain that coverage will be in place if and when a claim is made. Not informing insurers, in advance, that offenders are among those to be covered may result in disagreement[s] over claim coverage at the time when such coverage is most needed.
A copy of the statement may be obtained by contacting Debra Eisen, P.O. Box 41114, Olympia, WA 98504-1114, phone (360) 725-8363, fax (360) 664-2009, e-mail debra.eisen@doc.wa.gov.
A cost-benefit analysis is not required under RCW 34.05.328. No financial impact.
May 19, 2015
Dan Pacholke
for Bernard Warner
Secretary
Chapter 137-80 WAC
((INSTITUTIONAL)) CORRECTIONAL INDUSTRIES AND PROGRAMS AMENDATORY SECTION (Amending WSR 03-21-088, filed 10/17/03, effective 11/17/03)
WAC 137-80-010 Purpose.
These rules and regulations are adopted pursuant to and in accordance with chapter 34.05 RCW. The purpose is to provide standards and procedures ((for the operation of the division of institutional industries)) necessary to ensure the implementation of a comprehensive offender work program. (See RCW 72.09.015(32).) The headings and captions for the above classes are used for convenience only and do not constitute a part hereof. The use of the term "class" to identify a work program does not restrict the department to a singular description of an offender work program within that class or the use of other offender work programs authorized by separate statute. The secretary may adopt policies providing further guidance for establishing, among other things, offender participation eligibility and security requirements for each class of work program.
AMENDATORY SECTION (Amending WSR 07-12-073, filed 6/5/07, effective 7/6/07)
WAC 137-80-020 Definitions.
(((1) "Secretary" means the secretary of the department of corrections or his/her designee.
(2) "Program administrator" means the administrator of the institutional industries program appointed by the secretary.
(3) "Institutional industries board of directors" means the board established by the authority of the Corrections Reform Act of 1981, RCW 72.09.070.
(4) "Free venture industries" means any industry producing goods or services for sale to both the public and private sector which is operated and managed in total or in part by any profit or nonprofit organization pursuant to an agreement between the organization and the department. Inmates shall be paid a wage by the organization of not less than sixty percent of the approximate prevailing wage within the state for the occupation, as determined by the director, or minimum wage, whichever is greater.
(5) "Tax reduction industries" means any state-owned and operated enterprises designed to reduce the cost for services and goods for tax supported agencies and for nonprofit organizations which assist persons who are poor or infirm. Products of these enterprises may be sold to public agencies and to nonprofit organizations which assist persons who are poor or infirm. Inmates shall be paid for their work on a gratuity scale, approved by the director, which shall not exceed the federal minimum wage.
(6) "Institutional support industries" means any industry operated by the department of corrections designed and managed to provide basic work training and experience to the inmate. All able and eligible inmates who are assigned work and who are not working in other classes of industries are included in this class. Inmates shall be paid for their work in accordance with an inmate gratuity scale adopted by the secretary.
(7) "Community work industries" means any industry operated by the department of corrections designed and managed to provide services in the inmate's resident community at a reduced cost. Services shall be provided to public agencies, to persons who are poor or infirm, or to nonprofit organizations which assist the poor or infirm. Inmates shall receive a gratuity from a unit of local government which shall not exceed the minimum wage.
(8) "Community restitution programs" means any program operated by the state, local unit of government, or a nonprofit agency which assists persons who are poor or infirm which is subject to supervision by the department of corrections which enables an offender, placed on probation, to work off all or part of a community service order as ordered by the sentencing court.
(9) "Department" means the department of corrections.
(10) "Institutional industries" means the program within the department of corrections charged with developing and managing comprehensive work programs to provide work skills, work experience and exposure to the work ethic for offenders under the jurisdiction of the department.)) (1) "Community custody" means that portion of an offender's sentence of confinement in lieu of earned release time, or imposed as part of a sentence, and served in the community subject to controls placed on the offender's movement and activities by the department. (See RCW 9.94A.030.)
(2) "Community restitution" means compulsory service, without compensation, performed for the benefit of the community by the offender.
(3) "Community supervision" means a period of time during which a convicted offender, while living in the community, is subject to crime-related prohibitions and other sentence conditions imposed by a court. (See RCW 9.94B.020(2).)
(4) "Contracting entity" means a for-profit corporation, a public benefit nonprofit corporation, or public agency, as these terms are defined herein.
(5) "Correctional facility" means a facility, prison, or institution operated directly or by contract by the secretary for the purposes of incarcerating adults in total or partial confinement, as defined in RCW 9.94A.030.
(6) "Correctional industries advisory committee" or "committee" means the committee created under RCW 72.09.070 to make recommendations to the secretary regarding the implementation of RCW 72.09.100.
(7) "Crew supervisor" means a department or other public agency employee who provides security and custody supervision of offenders and coordinates offender transportation to offender work program sites.
(8) "Department" means the department of corrections.
(9) "DOSH" means the division of occupational safety and health, the part of the Washington state department of labor and industries (L&I) that develops and enforces safety and health rules.
(10) "For-profit corporation" means a corporation of two or more persons having a joint or common economic interest and is engaged in any lawful business under RCW 23B.03.010.
(11) "Good-will project" means a type of Class IV project, the cost of which is paid by the department of corrections and the criteria for which is determined by the secretary or designee.
(12) "Gratuity" means the sum of money paid to an offender, in accordance with an hourly rate scale approved by the department, when the offender works in an eligible class industry.
(13) "Not-for-profit corporation" or "nonprofit corporation" means a corporation or organization, no part of the income of which is distributable to its members, directors, or officers.
(14) "Offender work programs" means comprehensive work programs designed to provide work skills, work experience and exposure to the work ethic for offenders.
(15) "Program director (director)" means the administrator of the correctional industries program appointed by the secretary.
(16) "Project agreement" means the written agreement required between a prison and a public benefit nonprofit corporation or a public agency for offenders to perform Class IV good-will projects.
(17) "Public agency" means any agency, political subdivision, or unit of local government of this state including, but not limited to, municipal corporations, quasi-municipal corporations, special purpose districts, and local service districts; any agency of the state government; any agency of the United States; any Indian tribe recognized as such by the federal government; and any political subdivision of another state. (See RCW 39.34.020(1).)
(18) "Public benefit nonprofit corporation" means a corporation or an organization no part of the income of which is distributable to its members, directors, or officers and that holds a current tax exempt status as provided under 26 U.S.C. Sec. 501 (c)(3) or is specifically exempted from the requirement to apply for its tax exempt status under 26 U.S.C. Sec. 501 (c)(3). (See RCW 24.03.005.)
(19) "Secretary" means the secretary of the department of corrections or his/her designee.
(20) "Work location" means the location where offenders perform the services or create the products requested by the contracting entity; over which the contracting entity has the right of access or control and includes, but is not limited to, all workplaces covered by industrial insurance under Title 51 RCW, as now adopted or hereafter amended.
(21) "Work project description" means a localized agreement that operates under a master Class IV or Class V contract to detail the responsibilities of each party for each distinct project.
(22) "Work release" means a program of partial confinement available to offenders who are employed or engaged as a student in a regular course of study at school.
(23) "Worker" means an offender who provides his or her personal labor, whether manual labor or otherwise, to a contracting entity or the department, as permitted by law.
AMENDATORY SECTION (Amending WSR 82-18-042, filed 8/27/82)
WAC 137-80-030 Establishment of ((inmate)) offender programs.
In order to provide a comprehensive work program the department, in following the recommendation of the legislature, has adopted the following classes of work programs ((are adopted)) and made variations thereof:
((The above listed classes of work programs are adopted as codified in RCW 72.09.100. The secretary shall set forth department policy for the establishment of each class of work program, regulating, among others, inmates participation and wages, space rental and contracts for inmate employment.))
NEW SECTION
WAC 137-80-031 Class I: Free venture industries.
(1) The employer model industries in this class shall be operated and managed in total or in part by any for-profit or nonprofit corporation pursuant to an agreement between the corporation and the department. The corporation shall produce goods or services for sale to both the public and private sector.
(2) The customer model industries in this class shall be operated and managed by the department to provide Washington state manufacturers or businesses with products or services currently produced or provided by out-of-state or foreign suppliers.
(3) The department shall review these proposed industries, including any potential new Class I industries work program or the significant expansion of an existing Class I industries work program, before the department contracts to provide such products or services. The review shall include the analysis required under RCW 72.09.115 to determine if the proposed correctional industries work program will compete with any Washington business. An agreement for a new Class I correctional industries work program, or an agreement for a significant expansion of an existing Class I correctional industries work program, that unfairly competes with any Washington business is prohibited.
(4) The department shall supply appropriate security and custody services without charge to the participating firms.
(5) Offenders who work in free venture industries shall do so at their own choice. They shall be paid a wage comparable to the wage paid for work of a similar nature in the locality in which the industry is located, as determined by the program director of correctional industries. If the program director cannot reasonably determine the comparable wage, then the pay shall not be less than the federal minimum wage.
(6) An offender who is employed in the Class I program of correctional industries shall not be eligible for unemployment compensation benefits pursuant to any of the provisions of Title 50 RCW until released on parole or discharged.
NEW SECTION
WAC 137-80-032 Class II: Tax reduction industries.
(1) The department may establish Class II industry work programs that are closely patterned after private sector industries but are designed primarily to reduce the cost of goods and services. Goods produced and services provided by Class II work programs shall be provided at a reduced cost and only be available to the department, other tax-supported agencies and nonprofit corporations.
(a) The industries selected for development within this class shall, as much as possible, match the available pool of offender work skills and aptitudes with the work opportunities in the free community. Offenders working in Class II work programs do so at their own free choice.
(b) Except as provided in RCW 39.26.251 and this section, the products and services of this class, including purchased products and services necessary for a complete product line, may be sold by the department to the following:
(i) Public agencies;
(ii) Nonprofit corporations;
(iii) Private contractors when the goods purchased will be ultimately used by a public agency or a nonprofit corporation;
(iv) An employee and immediate family members of an employee of the department;
(v) A person under the supervision of the department and his or her immediate family members; and
(vi) A licensed health professional for the sole purpose of providing eyeglasses to enrollees of the state medical program at no more than the health professional's cost of acquisition.
(c) The secretary may issue guidance governing the type and quantity of items that may be purchased for other than resale purpose and sold under (b)(iv) and (v) of this subsection.
(d) Clothing manufactured by an industry in this class may be donated to public benefit nonprofit corporations that provide clothing free of charge to low-income persons, but under no circumstance shall uniforms to be worn by correctional officers employed with the department be made or assembled by offenders under the custody of the department.
(2) Security and custody services shall be provided at state expense by the department.
(3) The department may establish Class II work programs operated and managed in partnership with a public benefit nonprofit corporation pursuant to a contract between the corporation and the department to provide goods and/or services. The work programs may provide job training to offenders and may allow those offenders who have successfully completed a public benefit nonprofit corporation's job training program to request work assignment to the work program.
NEW SECTION
WAC 137-80-033 Class III: Institutional work programs.
(1) Class III work programs are operated by the department to support operation and maintenance needs of the facility and if possible, offset tax and other public support costs. Offenders assigned to Class III industries work in the prison to support internal prison operations.
(2) A contract is not required for Class III programs.
(3) Each prison will determine its own Class III work programs.
(4) Whenever possible, Class III programs will provide forty hours per week of basic work, or work training and experience, to help offenders to qualify for better work both within institutional industries and in the community.
(5) With approval of the secretary, a facility may, by written contract, partner with a public benefit nonprofit corporation to provide job specific training and work to offenders within the prison. Work performed by the offenders must be designed to produce goods or services for public agencies and/or public benefit nonprofit corporations at a reduced cost.
After completion of training, offenders may request assignment to the Class III program in the prison in which they received job specific training. Offenders assigned to such Class III programs may be required by the program, to fulfill occasional job related work requirements outside of the prison. Offenders approved for such off-site Class III work will be:
(a) Approved, in advance, by the prison superintendent or designee, to leave the prison grounds;
(b) Escorted by, and under the supervision of, a correctional officer at all times;
(c) Required to return to the prison the same day. Overnight absences will not be permitted; and
(d) Covered by the department offender health plan in the event of illness or injury while away from the prison.
(6) The department will:
(a) Screen and select the offenders to work in Class III programs based upon eligibility criteria developed by the department;
(b) At state expense, provide the management, work supervision, security and custody services required for all Class III programs; and
(c) Compensate offenders for work in Class III programs.
(i) The compensation paid to offenders working under Class III job descriptions shall be the same across all prisons for work that utilizes the same or similar job descriptions; and
(ii) Compensation will be paid to offenders in accordance with the payment scale established by the department for Class III work.
(7) Offenders working in Class III work programs are not eligible for industrial insurance benefits. (See RCW 72.60.102.)
NEW SECTION
WAC 137-80-034 Class IV: Community work crews.
Offenders in Class IV work status reside in facilities contracted for, owned or licensed by the department and participate in programs that have both education and work components.
(1) Prisons may provide two types of Class IV services. The first or standard type (standard), will constitute the majority of Class IV work and be paid for by the recipient of the services. The second and far less frequent type of Class IV service, a "good-will project" (project), will be paid for by the department.
(2) The secretary or designee will determine the criteria for Class IV good-will projects.
(3) Class IV services may be initiated by the department or provided at the request of a public agency or a public benefit nonprofit corporation.
(4) Class IV services are performed in the community, generally in the county in which the prison is located.
(5) Offenders in the same facility, who perform Class IV work utilizing the same or similar job descriptions, shall be compensated equally for the services that they provide.
(6) Class IV services do not require skilled labor, are not performed on private property, unless owned or operated by a public benefit nonprofit corporation, and have minimal negative impact on existing private industries or the labor force in the county where the service is provided.
(7) For standard Class IV services:
(a) The department will require:
(i) A master contract, written with program input, in the department's office of contracts and legal affairs and signed by the department secretary or contracts administrator and an authorized representative of the public agency or public benefit nonprofit corporation requesting the work; and
(ii) The master contract is signed by both parties before a work project description, which operates under the master contract to detail the responsibilities of each party for each project, is signed and services may begin.
(b) The public agency or public benefit nonprofit corporation that requests/receives the services will:
(i) Sign a Class IV master contract and, for each distinct project, sign a work project description under that master contract;
(ii) Provide relevant job specific and site specific safety training to offenders so that they can safely perform the required work;
(iii) At no cost to the department, supervise the project and direct the work performed;
(iv) Pay the department directly:
(A) At the then current state mileage rate, for transporting offenders to and from the worksite each day; and
(B) Offender compensation for the work performed.
(v) Pay the cost of worker's compensation insurance coverage for each offender providing services, directly to the Washington state department of labor and industries.
(vi) At the start of each calendar quarter, report the total number of offender service hours received during the previous quarter, to the department of labor and industries.
(8) For good-will projects the department will:
(a) Require a written and signed "project agreement" before offenders may begin work. The project agreement template:
(i) Is available from DOC contracts and legal affairs for completion and signature at the facility;
(ii) Must be signed by the prison superintendent or designee and an authorized representative of the public benefit nonprofit or public agency; and
(iii) Sent to DOC contracts and legal affairs, within two calendar days after it is signed by both parties.
(b) At state expense, provide the management, work supervision, security and custody services required;
(c) Compensate offenders for work performed;
(d) Pay department of labor and industries directly for offender worker's compensation insurance coverage for each offender providing services.
(e) At the start of each calendar quarter, report the total hours of offender good-will project services provided during the previous quarter to department of labor and industries; and
(f) A facility may, at its own discretion for a specific project, conduct the advance hazardous conditions and/or materials inspection itself or waive the requirement. Any waiver of the requirement will be based upon facility experience with the project site or the work to be performed.
(9) For all Class IV services:
(a) The department will:
(i) Screen and select the offenders for work crews based upon eligibility criteria developed by the department;
(ii) Review the public agency or public benefit nonprofit's hazardous conditions/materials report to assess whether to provide the requested services or require site remediation by the property owner before offenders begin the work;
(iii) Provide offenders with the necessary job specific protective clothing, as needed;
(iv) Transport offenders to and from worksites;
(v) Provide custody and security supervision of the offenders; and
(vi) Provide or coordinate the educational components of the program.
(b) The public agency or public benefit nonprofit corporation that requests/receives the services will conduct an advance hazardous conditions and materials assessment, in accordance with chapter 49.17 RCW, Washington Industrial Safety and Health Act, for each distinct project and report the results, in writing, to the department;
(10) Class IV correctional industries programs operated in work camps established pursuant to RCW 72.64.050 are managed under separate intergovernmental and local agreements and are exempt from these requirements.
NEW SECTION
WAC 137-80-035 Class V: Restitution, work release, and community supervision or custody.
(1) Participants in this class are offenders who are:
(a) In court ordered community restitution programs;
(b) In work release status; or
(c) Under community supervision or custody.
(2) Class V programs require a master contract, written in the department's office of contracts and legal affairs and signed by the department secretary or contracts administrator and an authorized representative of the public agency or public benefit nonprofit corporation requesting the work. The master contract must be signed by both parties before a work project description, which operates under the master contract to detail the responsibilities of each party for each project, is signed and services may begin.
(3) Class V programs may be operated by the department or by another public agency. Services in this class may only be provided to public agencies or to public benefit nonprofit corporations. The department may, by written contract, operate Class V crews that include offenders under the jurisdiction of other governmental entities. The department's authority over offenders under the jurisdiction of other governmental entities will be limited to that which is necessary for those offenders to participate on department Class V crews.
(4) When Class V programs are operated by the department, the department will:
(a) Transport offenders to and from worksites;
(b) Provide custody and security supervision of the offenders;
(c) Review the hazardous conditions/materials report to assess whether to provide the requested services or require site remediation before offenders begin the work; and
(d) Provide offenders with job specific personal protection clothing, as needed.
(5) The public agency or public benefit nonprofit corporation that receives the services will:
(a) Conduct an advance hazardous conditions and materials assessment, in accordance with chapter 49.17 RCW, Washington Industrial Safety and Health Act, for each distinct project, and, in writing, report the results to the department;
(b) Provide relevant job specific and site specific safety training to offenders so that they can safely perform the required work;
(c) At no cost to the department, supervise the project and direct the work performed by the offenders;
(d) Pay the department, at the then current state mileage rate, for transporting offenders to and from the project site each day; and
(e) Pay the Washington state department of labor and industries directly for the cost of worker's compensation insurance coverage for every offender providing services. (See WAC 137-80-080 and RCW 51.12.045.)
AMENDATORY SECTION (Amending WSR 03-21-088, filed 10/17/03, effective 11/17/03)
WAC 137-80-040 Sale of goods.
(1) The ((program administrator)) director or his/her designee may sell all articles, materials, and supplies authorized by statute to be produced or manufactured in correctional institutions to any state agency, political subdivision of the state or as otherwise authorized by statute.
(2) The secretary shall require those institutions under his/her direction to give preference to those articles, materials, and supplies produced or manufactured by ((institutional)) correctional industries when purchases are made for institution needs.
(3) The ((program administrator)) director may cause to be prepared annually, at such times he/she may determine, lists containing the descriptions of all articles and supplies manufactured and produced in state correctional institutions; copies of such list shall be sent to the supervisor of purchasing and to all departments, institutions and agencies of the state of Washington.
AMENDATORY SECTION (Amending WSR 82-18-042, filed 8/27/82)
WAC 137-80-050 Proceeds of sale.
Except for any sum recommended by the ((institutional industries board of directors)) committee to be returned to the state general fund, all net profits from institutional industries shall be placed in a special revolving fund (Class II account) and shall be used exclusively, without appropriation, in the expansion and improvement of Class II industries.
AMENDATORY SECTION (Amending WSR 03-21-088, filed 10/17/03, effective 11/17/03)
WAC 137-80-060 Inmate job opportunities. (See RCW 72.09.120.)
The ((program administrator)) director shall cause to be periodically prepared and distributed to a central location in each institution a list of ((prison)) correctional industries' and programs' job opportunities. This list shall include, but not be limited to, job descriptions and the educational and skill requirements of each job and shall be made available to institution personnel ((of the institution)), institutional industries and ((to the inmates)) offenders.
NEW SECTION
WAC 137-80-070 Safety and health.
(1) As required by the state division of occupational safety and health (DOSH), participants in offender work programs will be provided a safe and healthy workplace free from recognized hazards.
(2) All correctional industries and programs will adhere to relevant federal and state safety laws as well as to departmental safety policies and requirements.
(3) The department will determine whether or not offenders may perform the requested services in Classes IV and V. The department's determination will be based upon the written results of a hazardous conditions and materials assessment, performed in accordance with chapter 49.17 RCW, Washington Industrial Safety and Health Act, and conducted and provided to the department by the recipient of the offender services.
(4) Offenders in Classes I, IV, and V shall receive work and safety training and any necessary personal protective equipment (PPE), in accordance with the contract scope of work and/or the work project description.
(5) Offenders participating in Class III programs are not considered "employees" for DOSH purposes.
(6) For DOSH purposes, offenders participating in Class V programs may be considered "employees" of the public agency or public benefit nonprofit corporation for which the services were performed. (See RCW 51.12.045.)
NEW SECTION
WAC 137-80-080 Industrial insurance.
(1) No inmate compensated for work in correctional industries shall be considered as an employee or to be employed by the state or the department.
(2) Offenders working in Classes I, II, and IV of correctional industries are eligible for industrial insurance benefits as provided by Title 51 RCW.
(3) Offenders working in Class III industries are ineligible for industrial insurance benefits.
(4) For offenders working in Class V, industrial insurance medical aid coverage will be purchased by the entity for which the offenders are performing the work. To initiate coverage, the contracting entity will complete, sign and submit directly to L&I, the L&I application for elective coverage of excluded employees (application), before the occurrence of an injury or contraction of an occupational disease, by an offender to be covered.
(a) For offenders performing community restitution work, the contracting entity will check box 10 (community service workers) of the application;
(b) For offenders in work release status or under community supervision or custody, the contracting entity will check box 9 (volunteer worker, 6901 - Community improvement project) of the application.
(5) Any premiums or assessments due under Title 51 RCW for an offender's coverage shall be the obligation of the contracting entity for which the offender is performing the work, and shall be paid directly to the department of labor and industries by the contracting entity. Except that, L&I premiums due for offenders performing Class IV good-will projects shall be paid directly to L&I by the department.
NEW SECTION
WAC 137-80-090 Work crew costs and responsibilities.
(1) Nothing in this chapter shall be construed as limiting the regulatory authority of the department of labor and industries in determining health and safety compliance and employer status for purposes of DOSH and Title 51 RCW, the issuance or review of citations or corrective actions related to health and safety compliance in the workplace provided the offender crew, or in determining responsibility for payment of fees due under Title 51 RCW.
It is understood that the responsible divisions within the department of labor and industries shall act independently in any review of claims or citations. Public agencies and public benefit nonprofit corporations that contract with the department will be responsible for safety and health conditions at the worksite, have the responsibility and the authority for ensuring that any hazardous condition is corrected, and as applicable, pay the cost of each offender's industrial insurance coverage and gratuity.
(2) The department will provide security and custody supervision of offenders to fulfill its mission to improve public safety and to maintain custody as required by state law.
NEW SECTION
WAC 137-80-100 Application limited to this chapter.
The powers and authority conferred by this chapter shall be construed as limited to this chapter and nothing herein shall be construed as applying to any other offender work programs authorized by federal law or Washington state law. Neither shall anything contained herein be construed as limiting any other powers or authority of any public agency.
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