DEPARTMENT OF COMMERCE

[Filed September 18, 2019, 7:36 a.m.]

Preproposal statement of inquiry was filed as WSR 19-15-149 on August 7 [July 24], 2019.

Title of Rule and Other Identifying Information: Chapter 365-220 WAC, Developmental disabilities endowment trust fund (DDETF).

Hearing Location(s): On November 12, 2019, at 1:30 - 2:30 p.m., 1011 Plum Street S.E., Olympia, WA 98504-2525. Driving directions are available at https://www.google.com/maps/place/1011+Plum+St+SE,+Olympia,+WA+98501/@47.0393734,-122.892165,16z/data=!4m2!3m1!1s0x549174e188b3aa8d:0xa295e21d13c91e23.

Public parking is available near building.

A map is available at http://www.commerce.wa.gov/wp-content/uploads/2018/06/Town-Square-Campus-Visitor-Parking-Map-v7.0.pdf or call 360-725-4000.

Date of Intended Adoption: Not sooner than November 12, 2019.

Submit Written Comments to: Devin Proctor, P.O. Box 42525, Olympia, WA 98504-2525, email Devin.Proctor@commerce.wa.gov, fax 360-586-8440, by November 30, 2019.

Assistance for Persons with Disabilities: Contact Peter Tassoni, phone 360-725-3125, fax 360-586-8440, email peter.tassoni@commerce.wa.gov, by November 8, 2019.

Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: The department is amending chapter 365-220 WAC, Developmental disabilities endowment trust fund, as follows: Clarifying WAC 365-220-0070, 365-220-0075, and 365-220-0100 to have consistent language regarding reversion of state match when an account is closed.

Reasons Supporting Proposal: The changes to chapter 365-220 WAC update policy, improve clarity, and remove outdated information.

Three WAC cover the reversion of the state match contributions and earnings back to the program upon death, transfer or ineligibility of the beneficiary but the wording is not consistent between them. The WAC use different words although arguably the intent of those words was intended to be the same.

The governing board at the June 6, 2019, meeting confirmed the intent was that all unexpended state match and earnings would revert to the program when an individual account closed. In order to make the intent obvious, the special assistant attorney general (AAG) strengthened the language in the draft rules to make the WAC consistent. AAG Adix approved those changes.

Statutory Authority for Adoption: RCW 43.330.437.

Statute Being Implemented: RCW 43.330.430 through 43.330.437.

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

Name of Proponent: Department of commerce, on behalf of the DDETF governing board, governmental.

Name of Agency Personnel Responsible for Drafting, Implementation, and Enforcement: Peter Tassoni, P.O. Box 42525, Olympia, WA 98504-2525, 360-725-3125.

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. RCW 34.05.328 does not apply to department rules unless requested by the joint administrative rules review committee or applied voluntarily.

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.

Explanation of exemptions: The proposed rule does not impose any costs on businesses.

AMENDATORY SECTION(Amending WSR 19-07-034, filed 3/13/19, effective 4/13/19)

WAC 365-220-070What happens if a beneficiary moves out of the state of Washington?

If the beneficiary moves out of the state of Washington:

(1) The primary representative is required to notify the trust manager in writing within thirty days of the beneficiary's move out of the state of Washington.

(2) The governing board may elect, in its discretion, one of three options:

A	The balance of the beneficiary's individual trust account will be placed in another existing special needs trust established for the beneficiary. Any costs relating to the transfer will be charged to the beneficiary's individual trust account.

-or-

B	The individual trust account will remain open, and the account will be assessed fees at a level that will support all costs of maintaining the account. The beneficiary will no longer be eligible for the state match as of the date the beneficiary ceases to be a resident of Washington.

-or-

C	The beneficiary's individual trust account will be terminated and distributed as if the beneficiary had died.

(3) Prior to a transfer of the balance pursuant to subsection (2) option A of this section or any distribution pursuant to subsection (2) option C of this section, the unexpended state matching money and any earnings attributable to the unexpended state matching money shall revert to the developmental disabilities endowment trust fund.

AMENDATORY SECTION(Amending WSR 19-07-034, filed 3/13/19, effective 4/13/19)

WAC 365-220-075What happens if a beneficiary is determined to no longer meet the Washington state definition of developmental disability in RCW 71A.10.020(5)?

(1) The primary representative is required to notify the trust manager in writing if the beneficiary is found to no longer meet the definition of a person with a developmental disability in RCW 71A.10.020(5) within thirty days of the decision.

(2) If the beneficiary is determined to no longer meet the definition of a person with a developmental disability in RCW 71A.10.020(5), the governing board may elect, at its discretion, one of three options:

A	The balance of the beneficiary's individual trust account will be placed in another existing special needs trust established for the beneficiary. Any costs relating to the transfer will be charged to the beneficiary's individual trust account.

-or-

The beneficiary's individual trust account will remain open, and the account will be assessed fees at a level that will support all costs of maintaining the account. The beneficiary will no longer be eligible for the state match as of the date the beneficiary is determined to no longer meet the definition of a person with a developmental disability in RCW 71A.10.020(5). New contributions will not be accepted into the individual trust account during any period when the beneficiary does not meet the definition of the person with a developmental disability in RCW 71A.10.020(5).

-or-

C	The trust manager will make or direct distributions to or for the benefit of the beneficiary or to an achieving a better life experience (ABLE) account of the beneficiary, after first, the taxes and administrative expenses are paid and after second, the medicaid payback is enforced (if applicable).

AMENDATORY SECTION(Amending WSR 19-07-034, filed 3/13/19, effective 4/13/19)

WAC 365-220-100When and how may individual accounts be transferred?

A primary representative may request governing board approval for a transfer of an account to another special needs trust. This must be done through written correspondence to the governing board stating the reasons for the request. The governing board shall review all requests for transfers. Only the governing board or its designee may approve transfers. Any such transfers shall be consistent with the master trust and federal and state law.

((Transferring))Disbursing funds from an individual trust account to a qualified achieving a better life experience (ABLE) 529A account for the same beneficiary does not require governing board approval. The primary representative must contact the trust manager to initiate the funds ((transfer))disbursement. Prior to any disbursement under this section which will result in the closure of an individual trust account, the unexpended state matching money and any earnings attributable to the unexpended state matching money shall revert to the developmental disabilities endowment trust fund.