CHILDREN, YOUTH, AND FAMILIES

[Filed October 3, 2019, 4:29 p.m.]

Preproposal statement of inquiry was filed as WSR 19-16-024.

Title of Rule and Other Identifying Information: Juvenile rehabilitation (JR), WAC 110-730-0070 Residential disciplinary standards.

Hearing Location(s): On December 3, 2019, at 1:30 p.m., at Conference Room 3, Office Building 2, Service Level, 1115 Washington Street S.E., Olympia, WA.

Date of Intended Adoption: December 5, 2019.

Submit Written Comments to: Department of Children, Youth, and Families (DCYF) Rules Coordinator, P.O. Box 40975, email dcyf.rulescoordinator@dcyf.wa.gov, fax 360-902-7903, submit comments online at https://www.dcyf.wa.gov/practice/policy-laws-rules/rule-making/participate/online, by December 5, 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 November 27, 2019.

Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: Section 2 of SSB 5815 (concerning individuals placed in minimum security status by DCYF), effective July 28, 2019, amended RCW 72.05.405: (1) To provide that the unlawful use or possession of a controlled substance or an alcoholic beverage while in a community facility are excluded from a list of serious infractions requiring mandatory return to an institution; and (2) to direct DCYF to adopt and implement rules based on empirically validated best practices to appropriately address offenses involving unlawful use or possession of a controlled substance and unlawful use or possession of alcohol committed by individuals placed in juvenile community facilities. The purpose of this proposal is to adopt and implement rules based on empirically validated best practices to appropriately address these offenses by individuals placed in juvenile community facilities.

An emergency rule filing (CR-103E) for section 2 of SSB 5815 was filed on July 26, 2019, as WSR 19-16-023, which ensured that the existing rule, WAC 110-730-0070, was in compliance with RCW 72.05.405, as amended by SSB 5815, by removing the "possession, use, or distribution of drugs or alcohol, or use of inhalants" from the definition of "serious violations" in subsection (1)(i) (requiring mandatory return to an institution under subsection (3)(a)), and inserting that language in subsection (2) in the definition of "other violations," which may, but does not require, transfer of a juvenile to a higher security facility (under subsection (3)(d)).

As required by section 2 of SSB 5815, DCYF has developed "empirically validated best practices," which are included in this proposed rule making. The development of empirically validated best practices included: (1) Developing a literature review to identify the best practices for responding to youth who use substances while in a community facility; and (2) developing community facility standards based on those best practices. This was not included in the emergency rule filing because of the additional time needed to complete the literature review and development of standards based on those best practices.

A copy of the literature review identifying best practices is available at https://www.dcyf.wa.gov/practice/policy-laws-rules/rule-making/filings. Technical corrections are made to update program title and WAC references following the transfer of JR from the department of social and health services to DCYF and the decodification of chapter 388-170 WAC and its recodification to Title 110 WAC.

Reasons Supporting Proposal: See above.

Statutory Authority for Adoption: Section 2 of SSB 5815, codified as chapter 468, Laws of 2019 (effective July 28, 2019); chapters 43.216, 34.05 RCW.

Statute Being Implemented: Section 2 of SSB 5815, codified as chapter 468, Laws of 2019 (effective July 28, 2019).

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

Agency Comments or Recommendations, if any, as to Statutory Language, Implementation, Enforcement, and Fiscal Matters: This proposed rule making, which implements section 2 of SSB 5815, will be heard concurrently with the proposed rule making to implement section 1 of SSB 5815, which allows JR to increase the number of hours per day that individuals in community facilities may be in the community from twelve to up to sixteen hours per day.

Name of Proponent: DCYF, governmental.

Name of Agency Personnel Responsible for Drafting: Mark Rosen, 1115 Washington Street S.E., P.O. Box 45720, Olympia, WA 98504, 360-902-7504; Implementation: Daniel Schaub, 1115 Washington Street S.E., P.O. Box 45720, Olympia, WA 98504, 360-902-7752; and Enforcement: Kathleen Harvey, 1115 Washington Street S.E., P.O. Box 45720, Olympia, WA 98504, 360-902-8086.

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. DCYF is not among the agencies listed as required to comply with RCW 34.05.328 (5)[(a)](i). DCYF does not voluntarily make that section applicable to the adoption of the proposed rules.

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 19-14-079, filed 7/1/19, effective 7/1/19)

WAC 110-730-0070Residential disciplinary standards.

(1) Serious violations by a juvenile include:

(a) Escape or attempted escape;

(b) Violence toward others with intent to harm and/or resulting in significant bodily injury;

(c) Involvement in or conviction of a criminal offense under investigation by law enforcement or awaiting adjudication for behavior that occurred during current placement;

(d) Extortion or blackmail that threatens the safety or security of the facility or community;

(e) Setting or causing an unauthorized fire with intent to harm self, others, or property, or with reckless disregard for the safety of others;

(f) Possession or manufacture of weapons or explosives, or tools intended to assist in escape;

(g) Interfering with staff or service providers in performing duties relating to the security ((and/or)), safety, or both, of the facility or community;

(h) Intentional property damage in excess of one thousand five hundred dollars;

(i) ((Possession, use, or distribution of drugs or alcohol, or use of inhalants;

(j))) Rioting or inciting others to riot;

(((k)))(j) Refusal of urinalysis or search; or

(((l)))(k) Other behaviors which threaten the safety or security of the facility, its staff, or residents or the community.

(2) Other violations by a juvenile placed in a community facility or residential treatment and care program include:

(a) Unaccounted for time when a juvenile is away from the community facility or residential treatment and care program;

(b) Violation of conditions of authorized leave;

(d) Misuse of medication such as hoarding medication or taking another person's medication;

(e) Self-mutilation, self tattooing, body piercing, or assisting others to do the same;

(f) Intentional destruction of property valued at less than fifteen hundred dollars;

(g) Fighting;

(h) Unauthorized withdrawal of funds with intent to commit other violations;

(i) Suspensions or expulsions from school or work;

(j) Violations of school, employment or volunteer work agreements related to custody and security concerns;

(k) Escape talk;

(l) Sexual contact or any other behavior, not defined as a serious violation, resulting in a referral to ((the department of licensing,)) child protective services((,)) or law enforcement; ((or))

(m) Lewd or disruptive behavior in the community; or

(n) Possession, use, or distribution of drugs or alcohol, or use of inhalants.

(3) Juveniles must be held accountable when there is reasonable cause to believe they have committed a violation.

(a) Whenever a juvenile placed in a community facility or residential treatment and care program commits a serious violation, the juvenile must be returned to an institution. The JRA program administrator who receives a service provider report of a serious violation must make arrangements to transfer the juvenile to an institution as soon as possible. Juveniles may be placed in a secure JRA or contracted facility pending transportation to an institution.

(b) Sanctions for serious violations committed by juveniles in an institution, and additional sanctions for serious violations committed by juveniles returned to an institution, must include one or more of the following:

(i) Loss of privileges for up to thirty days;

(ii) Loss of program level; or

(iii) Room confinement up to seventy-two hours.

(i) Change in release date;

(ii) Referral for prosecution;

(iii) Transfer to an intensive management unit;

(iv) Increase in security classification;

(v) Reprimand and loss of points;

(vi) Restitution; or

(vii) Community service.

(d) Sanctions for violations listed in WAC 388-730-0070(2) may include transfer to a higher security facility and must include one or more of the following:

(i) Loss or privileges;

(ii) Loss of program level;

(iii) Room confinement up to seventy-two hours;

(iv) Change in release date;

(v) Reprimand ((and/or));

(vi) Loss of points;

(((vi)))(vii) Additional restitution; or

(((vii)))(viii) Community service.

(e) Sanctions for possession, use, or distribution of drugs or alcohol, or use of inhalants may include any listed in (d) of this subsection and the following:

(i) Review substance use screening tool;

(ii) Review current substance use assessment or refer for a new assessment; and

(iii) Consultation for appropriate level of intervention, treatment, and community safety.

(4) When a sanction is imposed, the juvenile must also receive a counseling intervention to address the violation.

(5) If the proposed sanctions for any violation includes extending the juvenile's established release date, the juvenile must be entitled to:

(a) A notice of an administrative review to consider extension of the release date and a written statement of the incident;

(b) An opportunity to be heard before a neutral review chairperson;

(c) Present oral or written statements, and call witnesses unless testimony of a witness would be irrelevant, repetitive, unnecessary, or would disrupt the orderly administration of the facility;

(d) Imposition of the sanction only if the administrative review chairperson finds by a preponderance of the evidence that the serious violation did occur; and

(e) A written decision, stating the reasons for the decision, by the administrative review chairperson.

(6) Each superintendent, regional administrator and service provider must clearly post, or make readily available, the list of serious violations and possible sanctions in all living units.

(7) Each program administrator must adopt procedures for implementing the requirements of this section.