CHILDREN, YOUTH, AND FAMILIES

[Filed July 30, 2019, 5:23 p.m.]

Preproposal statement of inquiry was filed as WSR 18-04-094.

Title of Rule and Other Identifying Information: WAC 110-400-0001 Authority, 110-400-0020 Applicability, 110-400-0030 Definitions, 110-400-0050 Early intervention services (EIS) providers, 110-400-0070 Child find and referral, 110-400-0100 Natural environments, 110-400-0130 System of payments and fees, 110-400-0140 Use of funds, 110-400-0150 Contracting and local agreements, 110-400-0160 Data collection and reporting, and 110-400-0170 General supervision, monitoring, and enforcement.

Hearing Location(s): On September 10, 2019, at 1:00 p.m., at 1110 Jefferson Street S.E., Cascade Conference Room, Olympia, WA.

Date of Intended Adoption: October 11, 2019.

Submit Written Comments to: The Department of Children, Youth, and Families (DCYF) Rules Coordinator, P.O. Box 40975, Olympia, WA 98504, email dcyf.rulescoordinator@dcyf.wa.gov, fax 360-902-7903, https://www.dcyf.wa.gov/practice/policy-laws-rules/rule-making/participate/online, by September 10, 2019.

Assistance for Persons with Disabilities: Contact DCYF rules coordinator, phone 360-902-7956, fax 360-902-7903, email dcyf.rulescoordinator@dcyf.wa.gov, by September 2, 2019.

Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: For the early support for infants and toddlers program, clarify in program definitions that a service provider must be an organization and cannot be an individual. Technical changes necessary following the decodification of chapter 290-400 [170-400] WAC and its recodification to Title 110 WAC are made in the proposals as well as nonsubstantive edits to improve readability.

Reasons Supporting Proposal: As the state lead agency for carrying out the provisions of the early intervention section of the federal Individuals with Disabilities Education Act, DCYF contracts with organizations to ensure that services are provided around the state to eligible families and children. Clarifying that a service provider may not be an individual will eliminate confusion among potential providers.

Statutory Authority for Adoption: RCW 43.216.020 (1)(g).

Statute Being Implemented: RCW 43.216.570 through 43.216.576.

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

Name of Proponent: DCYF, governmental.

Name of Agency Personnel Responsible for Drafting: Laurie Thomas, Olympia, 360-725-3516; Implementation and Enforcement: DCYF, statewide.

A school district fiscal impact statement is not required under RCW 28A.305.135.

A cost-benefit analysis is not required under RCW 34.05.328. The proposed rules relate only to internal governmental operations that are not subject to violation by a nongovernment party and clarify rule language without changing its effect. RCW 34.05.328 (5)(b)(ii) and (iv).

This rule proposal, or portions of the proposal, is exempt from requirements of the Regulatory Fairness Act because the proposal:

Is exempt under RCW 19.85.025(3) as the rules relate only to internal governmental operations that are not subject to violation by a nongovernment party; and rules only correct typographical errors, make address or name changes, or clarify language of a rule without changing its effect.

AMENDATORY SECTION(Amending WSR 18-14-078, filed 6/29/18, effective 7/1/18)

WAC 110-400-0001Authority.

RCW ((43.215.020))43.216.020 establishes the department of ((early learning))children, youth, and families (DCYF) as the state lead agency((,)) for Part C of the federal Individuals with Disabilities Education Act((, with the responsibility and authority to set and enforce rules for the provision of early intervention services in Washington state))(IDEA). RCW 43.216.020 also requires that DCYF develop and adopt rules that establish minimum requirements for the services offered through IDEA Part C programs, including allowable allocations and expenditures for transition into IDEA Part C. Federal authority for this chapter is 20 U.S.C. Sec. 1431-1444 and the Part C regulations in 34 C.F.R. Part 303, ((which includes))and DCYF is the state lead agency for receipt of federal funds for early intervention services. DCYF's responsibilities include, but are not limited to, coordination of all funding and oversight of state and federal funding allocated to implement early intervention services.

AMENDATORY SECTION(Amending WSR 18-14-078, filed 6/29/18, effective 7/1/18)

WAC 110-400-0020Applicability.

(1) Pursuant to RCW 43.216.020 and 28A.155.065, this chapter applies to all early intervention providers, including school districts, involved in early intervention service provision for children receiving services from the early support for infants and toddlers program, whether or not the ((entity or individual))agency receives state or federal funds.

(2) This chapter does not apply to any child with a disability receiving a free appropriate public education under chapter 392-172A WAC or 34 C.F.R. Part 300, Part B.

AMENDATORY SECTION(Amending WSR 18-14-078, filed 6/29/18, effective 7/1/18)

WAC 110-400-0030Definitions.

"Administrative indirect expenses" means indirect costs such as, general management compensation, joint facility costs, contract administration, fiscal services, and general office supplies that are not allocated to direct services for infants, toddlers, and their families.

"Department"or "DCYF" means the department of ((early learning))children, youth, and families, the Washington state lead agency designated by the governor to receive state and federal funds to administer the early support for infants and toddlers (ESIT) program. ((These responsibilities include, but are not limited to, coordination of all funding and oversight of state and federal funding allocated to implement early intervention services.))

"Department-approved clarification memos" means the ESIT program published guides and policy memos signed by the ESIT administrator ((and posted on the agency web site)).

"Early intervention services (((EIS)))" or "EIS" means developmental services that include:

(a) Assistive technology devices and services;

(b) Audiology services;

(d) Health services;

(e) Medical services;

(f) Nursing services;

(g) Nutrition services;

(h) Occupational therapy;

(i) Physical therapy;

(j) Psychological services;

(k) Service coordination;

(l) Signed language and cued language;

(m) Social work services;

(n) Special instruction;

(o) Speech-language pathology;

(p) Transportation and related costs; and

(q) Vision services.

"Early support for infants and toddlers (((ESIT))) program"or "ESIT" means the statewide program within ((the department of early learning))DCYF that administers all components of the birth to three early intervention system for eligible infants, toddlers, and their families.

"EIS provider agency" means any ESIT-approved organization((,))including, but not limited to, a public, private, tribal or nonprofit entity, including a school district, ((or an individual)) that provides EIS, whether or not ((the entity or individual))it receives funding from the ESIT program.

"Local agreement" means any written agreement required to implement ESIT services.

"Natural environments" means settings that are natural or typical for a same-aged infant or toddler without a disability, including the home or community settings.

(("Office of superintendent of public instruction" means the state educational agency responsible for the supervision of public elementary schools and secondary schools, including the implementation of Part B.))

"Part B" means special education of children with disabilities under the Individuals with Disabilities Education Act (IDEA), Part B, as amended, 20 U.S.C. Sec. ((1431-1444))1411-1419.

"Part C" means early intervention services for children with disabilities under the Individuals with Disabilities Education Act (IDEA), Part C, as amended, 20 U.S.C. Sec. 1431-1444 and 34 C.F.R. Part 303.

"Policies and procedures" means ESIT's federally approved policies and procedures for implementing EIS.

"Potential eligibility" means, based on existing assessment, evaluation, and the team's clinical understanding of the child's developmental status, the child is determined to be potentially eligible for services under Part B prior to the Part B required eligibility evaluation.

"School district" means a local educational agency administering elementary and secondary schools.

"System of payments and fees" means the federally required ESIT policy on families' financial contribution to their child's services.

AMENDATORY SECTION(Amending WSR 18-14-078, filed 6/29/18, effective 7/1/18)

WAC 110-400-0050((Early intervention services (EIS) providers.))EIS provider agencies.

EIS provider((s))agencies must:

(1) Provide and implement EIS according to state and federal law.

(2) Deliver services at a consistent level of frequency and intensity for a continuous twelve-month period based on child and family need, and not based on ((the)) availability of providers.

(3) Provide or otherwise arrange for all EIS included in the individualized family service plan. Wait lists and capping of services are prohibited.

(4) Enhance the capacity of the family in facilitating their child's development through natural learning opportunities at home or in community settings where typically developing children live, learn, or play.

AMENDATORY SECTION(Amending WSR 18-14-078, filed 6/29/18, effective 7/1/18)

WAC 110-400-0070Child find and referral.

(1) ((Early intervention service providers must meet the requirements of))EIS provider agencies must comply with state and federal law requirements regarding child find and referral.

(2) The department and local lead agencies will lead child find efforts and referral activities for the early support for infants and toddlers program. They may consult with state and local partners.

AMENDATORY SECTION(Amending WSR 18-14-078, filed 6/29/18, effective 7/1/18)

WAC 110-400-0100Natural environments.

(1) ((Early intervention service (EIS) providers must meet the requirements set forth in state and federal law))EIS provider agencies must comply with state and federal law requirements regarding natural environments.

(2) EIS must be provided in natural environments to the maximum extent appropriate based on the needs of the child.

(3) EIS may only occur in a setting other than a natural environment if one or more of a child's individualized family services plan (IFSP) outcomes cannot be met by providing EIS in a natural setting, as determined by the parent and the IFSP team.

AMENDATORY SECTION(Amending WSR 18-14-078, filed 6/29/18, effective 7/1/18)

WAC 110-400-0130System of payments and fees.

((Early intervention service (EIS) providers))EIS provider agencies must follow the system of payments and fees set forth in state and federal law, policies, and procedures and department-approved clarification memos.

AMENDATORY SECTION(Amending WSR 18-14-078, filed 6/29/18, effective 7/1/18)

WAC 110-400-0140Use of funds.

(1) ((Early intervention service (EIS) providers must follow))EIS provider agencies must comply with the use of funds guidance and requirements as set forth in state and federal law.

(2) State and federal funds for the ((early support for infants and toddlers ())ESIT(())) program may only be expended for ESIT required activities as ((outlined))described in state and federal law.

(3) Administrative indirect expenses ((are))must be limited to no more than ten percent of the total public moneys received by an ((entity))EIS provider agency providing Part C required components or direct services.

(4) Administrative indirect expenses ((are))must be limited to no more than five percent of the total public moneys received by an ((entity))EIS provider agency acting as a pass through for state or federal funding.

(5) Under the department's authority, local ESIT budgets will be monitored and subject to audit for allowable expenditures.

(6) EIS provider((s))agencies must bill all applicable funding sources including public and private insurance and families, prior to using state and federal funds for early intervention services.

(7) Public funds for the ESIT program may not be used for transition activities required under Part B of the Individuals with Disabilities Education Act.

(8) Under Part C, ((these)) allowable transition activities may be paid for with early intervention funds. EIS provider agency participation in allowable transition activities may include the following:

(a) The ((decision))determination of potential eligibility for Part B prior to referral to Part B((;)).

(b) Transition planning and activities in the IFSP, including:

(i) Discussions with((,))parents and training ((of parents)), as appropriate, regarding future placements and other matters related to the child's transition; and

(ii) Procedures to prepare the child for changes in service delivery, including steps to help the child adjust to, and function in, a new setting.

(d) Sharing of information, with parental consent((; and)).

(e) Attending the eligibility and IEP meeting, upon ((parent's))parental request.

AMENDATORY SECTION(Amending WSR 18-14-078, filed 6/29/18, effective 7/1/18)

WAC 110-400-0150Contracting and local agreements.

((Early intervention services providers))EIS provider agencies providing ESIT services must comply with contractual provisions from the department, and contracts and local agreements approved by ((early support for infants and toddler's ())ESIT(())) local lead agencies((, in providing ESIT services)).

AMENDATORY SECTION(Amending WSR 18-14-078, filed 6/29/18, effective 7/1/18)

WAC 110-400-0160Data collection and reporting.

((Early intervention service providers))EIS provider agencies must enter required data elements in the ((early support for infants and toddlers ())ESIT(())) data management system and report on ESIT activities as required by contract or local agreement.

AMENDATORY SECTION(Amending WSR 18-14-078, filed 6/29/18, effective 7/1/18)

WAC 110-400-0170General supervision, monitoring, and enforcement.

All ((early intervention service providers))EIS provider agencies are subject to general supervision, monitoring, and enforcement actions through ((the early support for infants and toddlers program (ESIT) and/or))ESIT and ESIT's local lead agencies set forth in state and federal law, contracts, and local agreements.