DEPARTMENT OF CORRECTIONS

[Filed December 17, 2019, 7:54 a.m.]

Preproposal statement of inquiry was filed as WSR 19-16-103.

Title of Rule and Other Identifying Information: Chapter 137-80 WAC, Correctional industries and programs, describes the work programs in which incarcerated individuals in prison and under community supervision must or may participate. Also, describes the requirements for use of incarcerated individuals' work crews by community nonprofits and governmental entities.

Hearing Location(s): On January 24, 2020, at 1 - 2 p.m., at the Department of Corrections (DOC), Headquarters Building, 7345 Linderson Way S.W., Room 1037, Tumwater, WA 98501. Please bring a driver's license or other state I.D. and check-in with security at the 1st floor reception desk.

Date of Intended Adoption: February 17, 2020.

Submit Written Comments to: Jennifer D. Williams, 7345 Linderson Way S.W., Tumwater, WA 98501, email Jennifer.Williams1@doc1.wa.gov, fax 360-664-2009, mailstop 41114, by January 17, 2020.

Assistance for Persons with Disabilities: Contact Jennifer D. Williams, phone 360-725-8364, fax 360-664-2009, email Jennifer.Williams1@doc1.wa.gov, mailstop 41114, by January 17, 2020.

Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: The primary purpose of this rule revision is to remove liability for the medical costs associated with offender work place injury from the recipients of work crew services and place such liability back onto DOC.

Reasons Supporting Proposal: Assuming the liability for worker injuries suffered during provision of work crew services has been difficult for some recipients of those work crew services. In the interest of improving community relations the department will reassume liability for worker injuries as defined by the department of labor and industries (L&I). The department will pay workers' compensation premiums and report worker hours directly to L&I each quarter. Recipients of the work crew services will, however, be invoiced for all L&I insurance premiums for incarcerated individual workers that it pays for on the recipients' behalf.

Statutory Authority for Adoption: RCW 72.01.090, 72.65.100, and 72.09.130.

Statute Being Implemented: Not applicable.

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: Implementation of this rule revision will reduce administrative costs for the recipient of the work crew services. Specifically, the recipient will no longer pay quarterly workers' compensation premiums and report workers' hours directly to L&I. Nor will recipients be liable for incarcerated individuals' on the job injuries and associated claims. The department will pay workers' compensation premiums and report worker hours as well as assume liability for worker injuries under the department's own L&I account. Recipients of work crew services will, however, be invoiced by the department for all workers' compensation premiums it pays on recipients' behalf.

Name of Proponent: DOC, governmental.

Name of Agency Personnel Responsible for Drafting, Implementation, and Enforcement: Debra Eisen, Tumwater, Washington 98504, 360-725-8363.

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

A cost-benefit analysis is required under RCW 34.05.328. A preliminary cost-benefit analysis may be obtained by contacting Jennifer Williams, 7345 Linderson Way S.W., Tumwater, WA 98501, phone 360-725-8364, fax 360-664-2009, TTY 360-725-8364, email Jennifer.Williams1@doc1.wa.gov, mailstop 41114.

The proposed rule does not impose more-than-minor costs on businesses. Following is a summary of the agency's analysis showing how costs were calculated. Chapter 137-80 WAC was amended in 2015 with changes effective on January 1, 2016. At that time a small business economic impact statement was drafted because some of the changes meant that work crew services would thereafter be more expensive for recipients of the services. At this time, the agency is amending the WAC to remove some requirements that became effective on January 1, 2016. As a result, these WAC changes could be viewed as cost savings to recipients of work crew services.

A copy of the detailed cost calculations may be obtained by contacting Jennifer D. Williams, 7345 Linderson Way S.W., Tumwater, WA 98501, phone 360-725-8364, fax 360-664-2009, TTY 360-725-8364, email Jennifer.Williams1@doc1.wa.gov, mailstop 41114.

AMENDATORY SECTION(Amending WSR 15-20-010, filed 9/24/15, effective 1/1/16)

WAC 137-80-010Purpose.

(1) These rules and regulations are adopted pursuant to and in accordance with chapter 34.05 RCW. The purpose is to provide standards and procedures 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))a work program within that class or the use of other ((offender)) work programs authorized by separate statute.

(2) The secretary may adopt policies providing further guidance for establishing, among other things, ((offender))worker participation eligibility and security requirements for each class of work program. The secretary may pilot temporary changes to correctional industries' Class IV and V work crew programs for the preservation of public health, safety or general welfare and in response to other community service needs that also promote public health, safety and general welfare. The benefits of such changes will be assessed through a limited number of work crew agreements that may not be subject to all of the current provisions of this chapter.

AMENDATORY SECTION(Amending WSR 15-20-010, filed 9/24/15, effective 1/1/16)

WAC 137-80-020Definitions.

(1) "Community custody" means that portion of ((an offender's))a person'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))person'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))an individual under the jurisdiction of the department.

(3) "Community supervision" means a period of time during which a person convicted ((offender))of a crime, while living in the community and under the jurisdiction of the department, 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))an eligible nonprofit corporation, or a 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))workers and coordinates ((offender))worker transportation to ((offender))program 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))Goodwill project" means a type of Class IV (prisons) or Class V (community corrections) work project, the cost of which is paid for by the department of corrections and the criteria for which is determined by the secretary or designee.

(12) "Gratuity" means ((the))a sum of money paid to an ((offender))incarcerated individual, in accordance with an hourly rate scale approved by the department, when the ((offender))individual works in an eligible class industry.

(13) "Not-for-profit corporation" or "nonprofit corporation" means a corporation or organization, certified by the federal Internal Revenue Service as such and for which no part of ((the))its income ((of which)) is distributable to its members, directors, or officers.

(14) "((Offender))Incarcerated individual" (formerly "((inmate))offender") means a person committed to the custody of the department including, but not limited to, persons residing in a correctional institution or facility and persons released from such facility on furlough, work release, or community custody, and persons received from another state, state agency, county, or federal jurisdiction. (See RCW 72.09.015(17).)

(15) "((Offender))Work program" means a comprehensive work program((s)) designed to provide work skills, work experience and exposure to the work ethic ((for offenders)).

(16) "Program director (director)" means the administrator of the correctional industries program appointed by the secretary.

(17) "Project agreement" means the written and fully signed agreement required between a prison or community corrections location and a ((public benefit nonprofit corporation or a public agency for offenders to))recipient, that is necessary before workers may perform ((Class IV good-will))goodwill projects for the recipient.

(18) "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).)

(19) "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))charity" means an organization, usually nonprofit, that holds ((a current))federal 501(c)(3) 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.))). Public charities are generally recognized as those organizations with broad based public support and active programs, for example, churches, benevolence organizations, animal welfare agencies, and educational organizations.

(20) "Recipient of the services" or "recipient" means an eligible nonprofit corporation, a for-profit corporation or a public agency, as these terms are defined herein, eligible to receive one or more types of work crew services.

(21) "Secretary" means the secretary of the department of corrections or his/her designee.

(((21)))(22) "Social welfare organization" means a civic 501(c)(4) organization, considered by the federal IRS to be operated exclusively for the promotion of social welfare, that is primarily engaged in actively promoting the common good in ways related to the organization's purpose.

(23) "Worker" means a person under department jurisdiction who is incarcerated, in work release or under community supervision or community custody who performs work crew services for eligible recipients.

(24) "Work location" means the location where ((offenders))workers perform the services or create the products requested by the recipient or contracting entity((;))and over which ((the contracting))such 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)).

(((22)))(25) "Work project description" means a localized agreement that operates under a master Class IV or Class V ((contract))work crew agreement to detail the responsibilities of each party for each distinct project.

(((23)))(26) "Work release" means a program of partial confinement available to ((offenders))persons under department jurisdiction who are employed or engaged as a student in a regular course of study at school.

(((24) "Worker" means an offender who provides his or her personal labor, whether manual labor or otherwise, to the department or to another entity contracting with the department for such labor, as permitted by law.))

AMENDATORY SECTION(Amending WSR 15-20-010, filed 9/24/15, effective 1/1/16)

WAC 137-80-030Establishment of ((offender))work 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 and made variations thereof:

(1)	Class I:	Free venture industries;
(2)	Class II:	Tax reduction industries;
(3)	Class III:	Institutional support industries;
(4)	Class IV:	Community work crews; and
(5)	Class V:	Restitution, work release and community supervision or custody.

AMENDATORY SECTION(Amending WSR 15-20-010, filed 9/24/15, effective 1/1/16)

WAC 137-80-031Class 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))Incarcerated individuals 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))incarcerated individual 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.

AMENDATORY SECTION(Amending WSR 15-20-010, filed 9/24/15, effective 1/1/16)

WAC 137-80-032Class 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))worker skills and aptitudes with the work opportunities in the free community. ((Offenders))Incarcerated individuals working in Class II work programs do so ((at))of 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))workers 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))incarcerated individuals 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.

AMENDATORY SECTION(Amending WSR 15-20-010, filed 9/24/15, effective 1/1/16)

WAC 137-80-033Class III: Institutional work programs.

(1) Class III work programs are operated by the department to support internal prison operation and maintenance needs and if possible, offset tax and other public support costs. ((Offenders))Incarcerated individuals are assigned to Class III work programs.

(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))participants to qualify for better ((offender))prison work programs and/or work in the community upon release.

(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))incarcerated individuals 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))workers may request assignment to the Class III program in the prison in which they received job specific training. ((Offenders))Workers assigned to such Class III programs may be required by the program to fulfill occasional job related work requirements outside of the prison. ((Offenders))Workers approved for such occasional 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;

(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))workers 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

(i) The compensation paid to offenders working under Class III job descriptions shall be the same)):

(i) In accordance with a payment scale established by the department for Class III work; and

(ii) At the same rates across all prisons for work that utilizes the same or similar job descriptions((; and

(ii) Compensation will be paid to offenders in accordance with a payment scale established by the department for Class III work)).

(7) ((Offenders))Incarcerated individuals working in Class III work programs are not eligible for industrial insurance benefits. (See RCW 72.60.102.)

AMENDATORY SECTION(Amending WSR 15-20-010, filed 9/24/15, effective 1/1/16)

WAC 137-80-034Class IV: Community work crews.

((Offenders))Incarcerated individuals 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))Class IV services may be provided to both 501 (c)(3) public charity and 501 (c)(4) social welfare nonprofit organizations and to public agencies. Two types of Class IV services are available. The first or standard type (standard), will constitute the majority of Class IV work and ((be))is paid for by the recipient of the services. The second ((and far less frequent)) type of Class IV service, a "((good-will))goodwill project" (project), ((will be))is 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))an eligible recipient. Allowable Class IV services are limited to those included in the Class IV project matrix, as now existing or hereafter revised.

(((4)))(3) Class IV services are performed in the community, generally in the county in which the prison is located.

(((5) Offenders in the same facility,))(4) Incarcerated individuals who perform Class IV work ((utilizing the same or similar job descriptions, shall be compensated equally for the services that they provide))will be compensated at gratuity rates specifically established for the type of work project performed. Class IV gratuity rates will be established by the department and contained in the Class IV project matrix as now existing or hereafter revised.

(((6)))(5) Class IV services do not require skilled labor, are not performed on private property, unless owned or operated by ((a public benefit))an eligible nonprofit corporation, and have minimal negative impact on existing private industries or the labor force in the county where the service is provided.

(((7)))(6) For standard Class IV services:

(a) The department ((will)) requires:

(i) A master ((contract))agreement, 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))recipient;

(ii) ((The master contract must be signed by both parties before))A work project description((, which))that is signed by the authorized representative of each party. The work project description operates under the master ((contract))agreement to detail the responsibilities of each party for each project((, is signed and services may begin)). Work may not begin until both a fully signed master agreement and a work project description for the particular project are signed by both parties.

(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))recipient of work crew services will:

(i) Not request any type of work determined by the department to be unsafe and included on its Class IV prohibited work list as now existing or hereafter revised;

(ii) Provide ((offenders))workers with relevant job specific and site specific safety training as well as instruction in the use of any specialized equipment necessary for the particular project;

(iii) ((At no cost to the department, supervise the project and direct the work performed;))Provide all workers with any specialized personal protective equipment (PPE) necessary for the particular project;

(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) At the start of each calendar quarter, pay the cost of worker's compensation insurance coverage directly to the Washington state department of labor and industries, for each hour of offender services received during the previous quarter;

(vi) At the start of each calendar quarter, report the total number of offender service hours received during the previous quarter, directly to the department of labor and industries))department's invoiced charges including, but not limited to:

(A) The cost of all workers' compensation premiums payable by the department to L&I on the recipient's behalf;

(B) Worker gratuities at the rate specified in the matrix for the specific services provided;

(D) The salary and benefits of any additional correctional officer(s), needed by the department at the project site, so that the department can, at the recipient's request, supervise Level 1 and 2 work in addition to supervising the workers for public safety and security.

(i) Provide one correctional officer to supervise workers for safety and security;

(ii) Pay workers' compensation premiums directly to L&I on behalf of the recipient, at the rates assigned to the department by L&I;

(iii) Report worker injury claims to L&I;

(iv) Provide an invoice to the recipient monthly for all costs associated with each project.

(d) Supervision of the work:

(i) For Level 1 and 2 projects. The department will supervise workers to complete the requested work. Depending upon the project scope and working conditions, DOC at its own discretion, may determine that additional officers are necessary at the project site. DOC may also collaborate with the recipient to determine whether constant and continuous or periodic on-site supervision of the work is required.

(ii) For Level 3 projects, which are more complex and may involve additional risk, the recipient will supervise workers to completion of the requested work. The recipient will itself determine, whether constant and continuous or periodic on-site supervision of the work is required.

(((8) For good-will))(7) For Class IV goodwill projects ((the department will)):

(a) ((Require a written and signed "project agreement" before offenders may begin work:

(i))) The secretary or designee will determine the goodwill criteria.

(b) Prisons division will:

(i) Provide the goodwill project criteria, applications and project agreements((template is available from DOC contracts and legal affairs for customization and completion at the))to each prison facility;

(ii) ((The customized))Require eligible nonprofit organizations to obtain, complete and submit an application for goodwill services to the prison from which services, if approved, will be provided. Every prison will assess applications based upon the Class IV goodwill project criteria developed by the department;

(iii) Have all approved goodwill project agreements((must be)) signed by the prison superintendent or designee and ((an))the recipient's authorized representative ((of the public benefit nonprofit or public agency))before starting any work; and

(((iii) Must be sent to DOC))(iv) Email a copy of each signed goodwill project agreement to the department's office of contracts and legal affairs((,)) within two calendar days after ((it is signed by))signature by the second of both parties((.

(b) At state expense, provide the management, work supervision, security and custody services required;

(d) At the start of each calendar quarter, pay the cost of offender worker's compensation insurance coverage directly to the Washington state department of labor and industries, for each hour of offender good-will services provided during the previous quarter;

(e) At the start of each calendar quarter, report the total number of offender good-will service hours provided during the previous quarter, directly to the department of labor and industries; and

(f) Have the option));

(v) Pay all costs associated with approved goodwill projects including worker gratuities and workers' compensation premiums. Recipients will not reimburse the department for such costs.

(c) For goodwill projects a prison may, at its own discretion ((for a specific project, to)) 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)))(8) For all Class IV services:

(a) The department will:

(i) Screen and select the ((offenders for work crews))workers 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 or not to provide the requested services, require specific personal protective equipment (PPE) for offenders or require site remediation by the agency or nonprofit before offenders can begin the work;

(iii) Suspend offender work where/if))Immediately suspend work when/if hazardous materials or conditions are discovered ((and))at a project site and inform the recipient so that it can make appropriate notifications for further assessment;

(((iv)))(iii) Transport ((offenders))workers to and from worksites;

(((v)))(iv) Provide custody and security supervision of the ((offenders))workers; ((and

(vi)))

(v) Provide or coordinate the educational components of the program((.

(b) The department will not reimburse any public agency or public benefit nonprofit corporation that uses offender services, for liability insurance costs associated with the services provided by offenders to the public agency or public benefit nonprofit corporation;

(c) The public agency or public benefit nonprofit corporation that requests/receives the offender services will, in accordance with WAC 296-800-160, conduct an advance hazardous conditions and materials assessment, for each distinct project and report the results using DOC Form 03-247 or other similar hazard assessment and PPE selection worksheet, to the department));

(vi) Not reimburse any recipient, for liability insurance costs associated with services provided by workers;

(vii) Adhere to the project level designations and gratuity rates and limit the types of work performed to those included in the Class IV project matrix as now existing or hereafter revised.

(b) The parties will jointly, except at the department's discretion for goodwill projects, conduct a hazardous conditions and materials assessment of the project location. Based upon the written assessment, the recipient will determine, with department concurrence, the specific personal protective equipment (PPE) that must be provided to workers to perform the requested services. The department will determine whether the recipient must perform site remediation before workers can begin to work at any given location.

(((10)))(9) 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.

AMENDATORY SECTION(Amending WSR 15-20-010, filed 9/24/15, effective 1/1/16)

WAC 137-80-035Class 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

(2) Class V services may only be provided to 501 (c)(3) public charity and 501 (c)(4) social welfare nonprofit organizations, public agencies and cemeteries registered and authorized by the IRS as 501 (c)(13) Cemetery Companies. Two types of Class V services are available. The first or standard (standard) service is paid for by the recipient. The second, a "goodwill project" (project), is paid for by the department.

(3) Class V services are performed in the community, generally in the county in which the workers reside.

(4) Standard Class V ((programs))work crew services:

(a) Require a master ((contract))agreement, written in the department's office of contracts and legal affairs and signed by the department secretary or contracts administrator and ((an))the recipient's authorized representative ((of the public agency or public benefit nonprofit corporation requesting the work)). The master ((contract))agreement must be signed by both parties before a work project description, which operates under the master ((contract))agreement to detail the responsibilities of each party for each project, is signed and services may begin.

(((3) Class V programs))(b) 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))workers under the jurisdiction of other governmental entities. The department's temporary authority over ((offenders under the jurisdiction of other governmental entities will be))such workers is limited to that which is necessary for those ((offenders))workers to participate on department Class V work crews.

(((4)))(c) When Class V work programs are operated by the department, the department will:

(((a)))(i) Transport ((offenders))workers to and from worksites;

(((b) Provide custody and security supervision of the offenders;

(c) Review the public agency or public benefit nonprofit's hazardous conditions/materials report to assess whether or not to provide the requested services, require specific personal protective equipment (PPE) for offenders or require site remediation by the agency or nonprofit before offenders can begin the work; and

(d) Suspend offender work where/if hazardous materials or conditions are discovered and make appropriate notifications for further assessment.

(5) The public agency or public benefit nonprofit corporation that receives the services will:

(a) In accordance with WAC 296-800-160, conduct an advance hazardous conditions and materials assessment for each distinct project and report the results using DOC Form 03-247 or other similar hazard assessment and PPE selection worksheet, to the department;

(b) Provide offenders))(ii) Provide one correctional officer to supervise workers for security and public safety;

(iii) Provide supervision of the work for Level 1 and Level 2 work projects and determine, at its own discretion, whether additional officers are necessary at the project site for supervision of the work;

(iv) Immediately suspend work when/if hazardous materials or conditions are discovered at a project site. Inform the recipient so that it can make appropriate notifications for further assessment;

(v) Pay L&I workers' compensation premiums on behalf of the recipient at the rates assigned to the department by L&I and report worker injury claims to L&I;

(vi) Invoice the recipient monthly for all costs associated with each project.

(5) The recipient of standard Class V services will:

(a) Provide workers with relevant job specific and site specific safety training ((as well as)), instruction in the use of any specialized equipment and instruction in the proper use of PPE;

(((c)))(b) At no cost to the department, supervise the ((project))work and direct the ((work performed by the offenders))workers performing Level 3 work projects which are more complex and may involve additional risk;

(((d)))(c) Pay the department((,))monthly for the services provided during the previous month. Invoiced costs include, but may not be limited to, mileage at the then current state mileage rate, for transporting ((offenders))workers to and from the project site ((each day;

(e) At the start of each calendar quarter, pay the cost of worker's compensation insurance coverage directly to the Washington state department of labor and industries, for each hour of offender services received during the previous quarter; and

(f) At the start of each calendar quarter, report the total number of offender service hours received during the previous quarter, directly to the department of labor and industries. (See WAC 137-80-080 and RCW 51.12.045.))); L&I workers' compensation premiums; supplies and materials; and any other costs negotiated between the parties which may include the salary and benefits of any additional correctional officer(s) needed by the department at the project site, so that the department can, at the recipient's request, supervise the Level 1 or 2 work in addition to supervising the workers for public safety and security;

(d) Not request any type of work determined by the department to be unsafe and included on its Class V prohibited work list as now existing or hereafter revised.

(6) Jointly, both parties to the agreement will conduct a hazardous conditions and materials assessment of the project location. Based upon the written assessment, the recipient will determine, with department concurrence, the specific personal protective equipment (PPE) that must be provided to workers to perform the requested services or whether the recipient must perform site remediation before work can begin.

(7) For Class V goodwill projects:

(a) The secretary or designee will determine the goodwill criteria, including eligibility, for recipients to participate. Every community corrections and work release location will assess applications based upon the Class V goodwill criteria developed by the secretary or designee;

(b) The community corrections division will:

(i) Provide written goodwill criteria, applications and project agreements to community corrections and work release locations;

(ii) Require potential recipients to obtain, complete and submit an application for goodwill services to the community corrections or work release location from which services, if approved, will be provided.

(c) Approved goodwill project agreements must be signed by the authorized DOC signatory or designee and an authorized representative of the recipient before work may begin;

(d) A copy of each signed goodwill project agreement will be emailed to the department contracts and legal affairs office within two calendar days after signature by the second of both parties;

(e) Community corrections will pay for all costs associated with approved goodwill projects including mileage, equipment, staff time and workers' compensation premiums. Recipients will not reimburse community corrections for such costs; and

(f) A community corrections location may, at its own discretion, conduct the advance hazardous conditions and/or materials inspection itself or waive the requirement. Any waiver of the requirement will be based upon experience with the project location or the work to be performed.

(8) For all Class V services:

(a) The department will:

(i) Screen and select the workers for crews based upon eligibility criteria developed by the department;

(ii) Immediately suspend work if hazardous materials or conditions are discovered at a project site and inform the recipient so that it can make appropriate notifications for further assessment and remediation;

(iii) Transport workers to and from worksites;

(iv) Provide custody and security supervision of the workers;

(v) Provide or coordinate any educational components of the program;

(vi) Except at the department's discretion for goodwill projects, the parties will jointly conduct a hazardous conditions and materials assessment of the project location. Based upon the written assessment, the recipient will determine, with department concurrence, the specific personal protective equipment (PPE) that must be provided to workers to perform the requested services. The department will determine whether the recipient must perform site remediation before workers can begin to work at a given location.

(b) The department will not reimburse any recipient, for liability insurance costs associated with the services provided by workers.

(c) The department will adhere to the project level designations and limit the types of work performed to those included in the Class V project matrix as now existing or hereafter revised.

AMENDATORY SECTION(Amending WSR 15-20-010, filed 9/24/15, effective 1/1/16)

WAC 137-80-060Inmate job opportunities. (See RCW 72.09.120.)

The director shall cause to be periodically prepared and distributed to a central location in each institution a list of 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, institutional industries and ((offenders))incarcerated individuals.

AMENDATORY SECTION(Amending WSR 15-20-010, filed 9/24/15, effective 1/1/16)

WAC 137-80-070Safety 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, as the custodial authority, will determine whether or not it is safe for ((offenders))workers to perform the requested services in Classes IV and V. The department's determination ((will))may be based upon previous experience with the project location, the work project requested and the recipient, or the results of a hazardous conditions and materials assessment((,)) performed ((in accordance with WAC 296-800-160 by the recipient of the offender services and provided to the department, using DOC Form 03-247 or other similar hazard assessment and PPE selection worksheet))by the department and the recipient together or at the department's discretion, by the department alone.

(4) ((Offenders))Workers 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, the))master work crew agreement, associated work project descriptions, goodwill project agreement and chapter 296-800 WAC, Safety and health core rules.

(5) ((Offenders))Incarcerated individuals participating in Class III programs are not considered "employees" for DOSH purposes.

(6) For DOSH purposes, ((offenders))incarcerated individuals participating in Class V programs may be considered "employees" or "workers." ((of the public agency or public benefit nonprofit corporation for which the services are performed. (See RCW 51.12.045.)))

AMENDATORY SECTION(Amending WSR 15-20-010, filed 9/24/15, effective 1/1/16)

WAC 137-80-080Industrial insurance.

(1) No ((offender))incarcerated individual compensated for work in correctional industries shall be considered as an employee, or to be employed by the state or the department.

(2) ((Offenders))Incarcerated individuals working in Classes I, II, and IV of correctional industries are eligible for industrial insurance benefits as provided by Title 51 RCW.

(3) ((Offenders))Incarcerated individuals performing Class V community restitution work will be made eligible for industrial insurance benefits as provided for by RCW 51.12.045.

(4) Incarcerated individuals working in Class III industries are ineligible for industrial insurance benefits.

(((4) For offenders working in Class V, the cost to provide offenders with industrial insurance medical aid coverage will be paid for by the entity for which the offenders perform the work. To initiate coverage, the entity will complete, sign and submit directly to L&I, the L&I application for elective coverage of excluded workers (application), before the occurrence of an injury or contraction of an occupational disease, by offenders to be covered. Entities will check application box number 10 (community service workers, 7203) of L&I Form F213-112-000 to initiate coverage.

(5) Any))(5) The department will pay the department of labor and industries all workers' compensation premiums ((or assessments)) due under Title 51 RCW for ((an offender's coverage shall be the obligation of the entity for which the offender is performing the work, and shall be paid directly to the department of labor and industries by that 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 of corrections))workers providing services in classes IV and V. Recipients must reimburse the department for all such workers' compensation premiums paid under Title 51 RCW. Except that, recipients will not pay the department for any L&I premiums paid for workers providing goodwill services.

AMENDATORY SECTION(Amending WSR 15-20-010, filed 9/24/15, effective 1/1/16)

WAC 137-80-090Work 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))prison or community corrections work 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 for ((offender))work crew services will be responsible for safety and health conditions at the worksite, will have the responsibility and the authority for ensuring that any hazardous condition is corrected, and as applicable, ((pay))reimburse the department for the cost of ((offender))worker industrial insurance coverage. For standard Class IV services only, ((public agencies and public benefit nonprofit corporations,))recipients will also be responsible for paying ((offender))worker gratuities.

(2) The department will provide the security and custody supervision of ((offenders))workers at all work crew locations to fulfill its mission to improve public safety and to maintain custody as required by state law.

(3) Any specific ((offender))worker personal protective equipment that is required will be detailed in the work project description (WPD) for each distinct Class IV or Class V work crew project ((as well as))or in the project agreement for any ((Class IV good-will))goodwill project. The party(ies) responsible for providing such PPE will also be designated in the WPD.

AMENDATORY SECTION(Amending WSR 15-20-010, filed 9/24/15, effective 1/1/16)

WAC 137-80-100Application 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))incarcerated individuals' 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.