SOCIAL AND HEALTH SERVICES

(Developmental Disabilities Administration)

[Filed June 26, 2023, 3:41 p.m., effective June 26, 2023, 3:41 p.m.]

Effective Date of Rule: Immediately upon filing.

Purpose: The developmental disabilities administration (DDA) is enacting these changes on an emergency basis to prepare for implementation of HB 1407 (2023), which stipulates that DDA's rules must not "terminate or require redetermination of eligibility for a child under the age of 18 based solely on the child's age if the child has been determined to be eligible for services on or after the child's third birthday."

Citation of Rules Affected by this Order: Amending WAC 388-823-0600, 388-823-0610, 388-823-1005, and 388-823-1010.

Statutory Authority for Adoption: RCW 34.05.350 and 71A.16.040.

Under RCW 34.05.350 the agency for good cause finds that state or federal law or federal rule or a federal deadline for state receipt of federal funds requires immediate adoption of a rule.

Reasons for this Finding: Enacting these rules on an emergency basis is necessary in order to align DDA's eligibility review rules with amendments to RCW 71A.16.040, which are effective July 23, 2023.

Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 0, Repealed 0.

Number of Sections Adopted at the Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.

Number of Sections Adopted on the Agency's own Initiative: New 0, Amended 0, Repealed 0.

Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 4, Repealed 0.

Number of Sections Adopted using Negotiated Rule Making: New 0, Amended 0, Repealed 0; Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 0, Amended 0, Repealed 0.

Date Adopted: June 26, 2023.

Katherine I. Vasquez

AMENDATORY SECTION(Amending WSR 18-15-046, filed 7/13/18, effective 8/13/18)

WAC 388-823-0600How do I show that I have another neurological or other condition similar to intellectual disability?

In order to be considered for eligibility under the category of another neurological or other condition similar to intellectual disability you must:

(1) Be age four or older and have a diagnosis by a licensed physician of a neurological or chromosomal disorder that:

(a) Originated before age ((eighteen))18;

(b) Is known by reputable authorities to cause intellectual and adaptive skills deficits;

(d) Is other than intellectual disability, autism, cerebral palsy, or epilepsy;

(e) Is not attributable to nor is itself a mental illness, or emotional, social, or behavior disorder; and

(f) Has resulted in substantial functional limitations.

(2) Be receiving fee-for-service medically intensive children program (MICP) services under chapter 182-551 WAC, and have been continuously eligible for DDA due solely to your MICP eligibility since before August 13, 2018; or

(3) Be under the age of ((ten))20 and have one or more developmental delays.

AMENDATORY SECTION(Amending WSR 18-15-046, filed 7/13/18, effective 8/13/18)

WAC 388-823-0610If I have another neurological or other condition similar to intellectual disability, how do I meet the definition of substantial functional limitations?

If you have an eligible condition of another neurological or other condition similar to intellectual disability, in order to meet the definition of substantial functional limitations you must have impairments in both intellectual abilities and adaptive skills, which are separate from any impairment due to an unrelated mental illness, or emotional, social, or behavioral disorder.

(1) For WAC 388-823-0600(1) evidence of substantial functional limitations requires documentation of (a) and (b) below:

(a) For impairment in intellectual abilities, either subsection (i) or (ii) or (iii) of this section:

(i) An FSIQ score of more than 1.5 standard deviations below the mean under WAC 388-823-0720 and subject to all of WAC 388-823-0720 and WAC 388-823-0730;

(ii) If you are under the age of ((twenty))20, significant academic delays defined as delays of more than two standard deviations below the mean at the time of testing in both broad reading and broad mathematics; or

(iii) A statement by a licensed physician, a licensed psychologist, or a school psychologist that your condition is so severe that you are unable to demonstrate the minimal skills required to complete testing for an FSIQ.

(b) For impairment in adaptive skills, a score of more than two standard deviations below the mean under WAC 388-823-0740 and subject to all of WAC 388-823-0740 and WAC 388-823-0750.

(2) For WAC 388-823-0600(2) you do not need additional evidence of your substantial functional limitations if your eligible condition is solely due to your eligibility and participation in the fee-for-service medically intensive children program under chapter 182-551 WAC.

(3) For WAC 388-823-0600(3) evidence of substantial functional limitations requires documentation of (a) or (b) or (c) below:

(a) You are under the age of three and have one or more developmental delays under WAC 388-823-0770;

(b) You are under the age of three and meet the ESIT eligibility requirements; or

AMENDATORY SECTION(Amending WSR 18-15-046, filed 7/13/18, effective 8/13/18)

WAC 388-823-1005When does my eligibility as a DDA client expire?

(1) If you are determined eligible before age three, your eligibility expires on your fourth birthday.

(2) If you are determined eligible ((at age three but)) under age ((ten))20 under developmental delays,((or Down syndrome)) your eligibility expires on your ((tenth))20th birthday.

(3) DDA will notify you at least six months before your eligibility expiration date.

(4) If your eligibility expires, you must reapply in order to maintain eligibility with DDA.

(5) If you fail to reapply before your expiration date or if DDA receives your reapplication less than ((sixty))60 days before your expiration date and DDA does not have sufficient time to make an eligibility determination by the date of expiration, DDA eligibility will expire and your DDA paid services will stop.

(a) If DDA determines you eligible after your eligibility expires, your eligibility will be reinstated on the date that DDA determines you eligible under WAC 388-823-0100.

(b) If DDA determines you eligible after your eligibility expires, your eligibility will not be retroactive to the expiration date.

(6) This expiration of eligibility takes effect even if DDA is unable to locate you to provide written notification that eligibility is expiring.

(7) There is no appeal right to eligibility expiration.

AMENDATORY SECTION(Amending WSR 19-14-119, filed 7/3/19, effective 8/3/19)

WAC 388-823-1010When will DDA review my eligibility to determine if I continue to meet the eligibility requirements for DDA?

(1) DDA will review your eligibility:

(a) If you are age ((nineteen))19 and your most recent eligibility determination was completed before your ((sixteenth))16th birthday unless you were determined eligible under developmental delay;

(b) If you are age ((nineteen))19 and were determined eligible under another neurological or other condition similar to intellectual disability and have used academic delays as evidence of your substantial functional limitations;

(c) Before authorization of any DDA-paid service if you are not currently receiving paid services and your most current eligibility determination was made before June 1, 2005;

(d) If the evidence used to make your most recent eligibility determination is insufficient, contains an error, or appears fraudulent;

(e) If new information becomes available that does not support your current eligibility determination; or

(f) If you were determined eligible due solely to your eligibility for fee-for-service (FFS) medically intensive children's program (MICP) services and you are no longer eligible for FFS MICP services.

(2) If DDA requires additional information to make a determination of eligibility during a review and you do not provide sufficient information, DDA will terminate your eligibility:

(a) On your ((twentieth))20th birthday if the review is because you are age ((nineteen))19; or

(b) ((Ninety))90 days after DDA requests the information if the review is because:

(i) You have requested a paid service;

(ii) The evidence used to make your most recent eligibility determination is insufficient, contains an error, or appears fraudulent;

(iii) New information is available that does not support your current eligibility determination; or

(iv) You are no longer eligible for FFS MICP services under chapter 182-551 WAC.