Preproposal statement of inquiry was filed as WSR 98-09-009.

Title of Rule: WAC 275-27-020, 275-27-023, 275-27-040, 275-27-050, and 275-27-230.

Purpose: Chapter 216, Laws of 1998 (SSB 6751) requires the Division of Developmental Disabilities to establish rules to implement the following: (1) Provide information and outreach to all eligible DDD persons and applicants and their families of all services provided by DDD, including residential habilitation centers (RHC); and (2) eligibility criteria and process for offering eligible adults the choice of admission into available vacancies in the residential habilitation centers or alternative community services.

Statutory Authority for Adoption: RCW 71A.12.030, 71A.16.030.

Statute Being Implemented: Chapter 216, Laws of 1998.

Summary: Proposed rules ensure that all eligible persons/families, applicants/families of the Division of Developmental Disabilities receive information on the full spectrum of services provided by the division, including residential habilitation centers. Proposed rules define the criteria and process for providing eligible adults the opportunity to choose to receive their services in an available vacancy in the residential habilitation center or in the community. These rules are currently effective as emergency rules and the division is going through the permanent adoption process.

Reasons Supporting Proposal: These rules reflect stakeholder, advocates, department, and legislative consensus to provide eligible persons the opportunity to choose what and where services are received; information outreach to clients/families; stabilization of division services; an analysis of service needs/costs and recommendations by 2003; the development of a long-term strategic plan with stakeholders.

Name of Agency Personnel Responsible for Drafting, Implementation, and Enforcement: Sue Poltl, DDD, P.O. Box 45310, Olympia, 98504-5310, (360) 902-8474.

Name of Proponent: Department of Social and Health Services, governmental.

Explanation of Rule, its Purpose, and Anticipated Effects: WAC 275-27-020, addition of the following terms to the "definitions" section: Adolescent, community support services, ICF/MR eligible, nursing facility eligible, residential habilitation center, RHC capacity, vacancy.

WAC 275-27-023 Exemptions, changed the number of the WAC reference.

WAC 275-27-040 Application for services, added subsection (3) requiring DDD to inform all applicants about the complete spectrum of service options provided by the division.

WAC 275-27-050 Determination for necessary services, added wording to subsection (1) ensuring that DDD would do what is reasonable to explain service options, support people to remain in their homes and communities, and plan/develop services that meet the unique needs of individuals and families. Subsection (4) states that an outreach program will be developed.

WAC 275-27-230 Authorization of services, details the eligibility criteria for determining which adults are provided the opportunity to choose to receive their services in an RHC or in the community. Subsection (5) defines the criteria for admission to an RHC for thirty-one days or more with written approval of the division director. Subsection (6) allows the division to make RHC vacancies available for other services.

Proposal Changes the Following Existing Rules: (1) Requires the division to inform all eligible persons and applicants of all services, including residential habilitation centers.

(2) Establishes rules for providing eligible adults the opportunity to choose to receive their services in an RHC or in the community.

(3) Establishes condition for division director exemptions for RHC admissions.

No small business economic impact statement has been prepared under chapter 19.85 RCW. Does not impact small businesses.

RCW 34.05.328 applies to this rule adoption. Does meet the definition of significant legislative rule but meets exemption criteria under RCW 34.05.328 (5)(b)(ii).

Hearing Location: Lacey Government Center, 1009 College Street S.E., Room 104-B, Lacey, WA 98503, on September 8, 1998, at 10:00 a.m. Assistance for persons with disabilities contact Paige Wall at (360) 902-7540 by August 25, 1998. From 9-10 a.m. the DDD program person will be available to discuss questions and concerns related to these WAC revisions.

At the Region 4 DDD Office, 907 N.W. Ballard Way, Suite 200, Seattle, WA 98107, on September 14, 1998, at 10:00 a.m. From 9-10 a.m. the DDD program person will be available to discuss questions and concerns related to these WAC revisions. For directions to location, please call (206) 720-3300 or (800) 314-3296.

At the Region 1 DDD Office, West 1611 Indiana Avenue, Spokane, WA 99205-4221, on September 15, 1998, at 10:00 a.m. From 9-10 a.m. the DDD program person will be available to discuss questions and concerns related to these WAC revisions. For directions to location, please call (509) 456-2893 or (800) 462-0624.

At the Region 2 DDD Office, 1002 North 16th Avenue, Yakima, WA 98909-2500, on September 16, 1998, at 10:00 a.m. From 9-10 a.m. the DDD program person will be available to discuss questions and concerns related to these WAC revisions. For directions to location, please call (509) 575-2330 or (800) 822-7840.

Assistance for Persons with Disabilities: Contact Paige Wall, phone (360) 902-7540, TTY (360) 902-8324, e-mail pwall@dshs.wa.gov.

Submit Written Comments to: Identify WAC Numbers, Paige Wall, Rules Coordinator, Rules and Policies Assistance Unit, P.O. Box 45850, Olympia, WA 98504-5850, fax (360) 902-8292, by September 21, 1998.

Date of Intended Adoption: September 30, 1998.

August 4, 1998

Marie Myerchin-Redifer, Manager

Rules and Policies Assistance Unit

WAC 275-27-020  Definitions. (1) "Adolescent" means a DDD eligible child age thirteen through seventeen years.

(2) "Best interest" includes, but is not limited to, ((individual)) client-centered benefits ((designed)) to:

(a) Prevent regression or loss of skills already acquired;

(b) Achieve or maintain economic self-support;

(c) Achieve or maintain self-sufficiency;

(d) Prevent or remedy neglect, abuse, or exploitation of individuals unable to protect their own interest;

(e) Preserve or reunite families; and

(f) Prevent or reduce inappropriate institutional care by providing the least-restrictive setting that will meet the ((individual's)) person's medical and personal needs, such as community-based services, home-based services, or other forms of less-intensive service.

(((2))) (3) "Client or person" means a person the division determines under RCW 71A.16.040 and WAC 275-27-026 eligible for division-funded services.

(((3))) (4) "Community support services" means one or more of the services listed in RCW 71A.12.040 including, but not limited to the following services: Architectural, case management, early childhood intervention, employment, counseling, family support, respite care, information and referral, health services and equipment, therapy services, and residential support.

(5) "Department" means the department of social and health services of the state of Washington.

(((4))) (6) "Director" means the director of the division of developmental disabilities.

(((5))) (7) "Division or DDD" means the division of developmental disabilities of the department of social and health services.

(((6))) (8) "Emergency" means a sudden, unexpected occurrence demanding immediate action.

(((7))) (9) "Exemption" means the department's approval of a written request for an exception to a rule in this chapter.

(((8))) (10) "ICF/MR" means a facility certified as an intermediate care facility for the mentally retarded by Title XIX to provide services to the mentally retarded or persons with related conditions.

(((9))) (11) "ICF/MR Eligible" for admission to an ICF/MR means a person is determined by DDD as needing active treatment as defined in CFR 483.440. Active treatment requires:

(a) Twenty-four hour supervision; and

(b) Continuous training and physical assistance in order to function on a daily basis due to deficits in the following areas: Toilet training, personal hygiene, dental hygiene, self-feeding, bathing, dressing, grooming, and communication.

(12) "Individual" means ((the)) a person applying for ((whom)) services from the division ((services are requested)).

(((10) "Informed consent" means an agreement obtained from a person or the person's authorized representative, for such person's participation in an activity other than health care. Informed consent for health care shall be provided under RCW 7.70.065. The following information is necessary to informed consent:

(a) An explanation of the procedures to be followed including an identification of experimental procedures;

(b) A description of the attendant discomforts and risks;

(c) A description of the expected benefits;

(d) A disclosure of appropriate alternative procedures;

(e) An offer to answer inquiries concerning the procedures; and

(f) Instruction that consent may be withdrawn and participation discontinued at any time.

(11))) (13) "Intelligence quotient score" means a full scale score on the Wechsler, or the intelligence quotient score on the Stanford-Binet or the Leiter International Performance Scale.

(((12))) (14) "Nonresidential programs" means programs including, but not limited to, county-funded habilitation services.

(((13))) (15) "Nursing facility eligible" means a person is assessed by DDD as meeting the requirements for admission to a licensed nursing home as defined in WAC 388-97-235. The person must require twenty-four hour care provided by or under the supervision of a licensed nurse.

(16) "Residential habilitation center" or "RHC" means a state-operated facility certified to provide ICF/MR or nursing facility level of care for persons with developmental disabilities.

(17) "RHC capacity" means the maximum number of eligible persons that can reside in a residential habilitation center without exceeding its 1997 legislated budgeted capacity.

(18) "Residential programs" means ((those)) programs providing domiciliary care or other residential services, including, but not limited to, state residential facilities, group homes, nursing facilities, ICF/MRs, tenant support services, congregate care facilities, boarding homes, children's foster homes, adult family homes, and group training homes.

(((14))) (19) "Respite care" means temporary residential services provided to a ((developmentally disabled)) person and ((the person's))/or the person's family on ((either)) an emergency or planned basis ((without which the individual may need an alternative living environment)).

(((15))) (20) "Secretary" means the secretary of the department of social and health services or the secretary's designee.

(21) "Vacancy" means an opening at a RHC, which when filled, would not require the RHC to exceed its 1997 biannually budgeted capacity, minus:

(a) Twenty-six beds designated for respite care use; and (b) Any downsizing related to negotiations with the Department of Justice regarding community placements.

[Statutory Authority: RCW 71A.14.030 and 71A.16.020. 92-09-115 (Order 3373), § 275-27-020, filed 4/21/92, effective 5/22/92. Statutory Authority: RCW 71A.16.020. 91-17-005 (Order 3230), § 275-27-020, filed 8/9/91, effective 9/9/91. Statutory Authority: RCW 71.20.070. 89-06-049 (Order 2767), § 275-27-020, filed 2/28/89; 84-15-058 (Order 2124), § 275-27-020, filed 7/18/84. Statutory Authority: RCW 72.01.090, 72.33.040, 72.33.125 and 72.33.165. 78-04-033 (Order 1280), § 275-27-020, filed 3/16/78; Order 1143, § 275-27-020, filed 8/11/76.]

Reviser's note: RCW 34.05.395 requires the use of underlining and deletion marks to indicate amendments to existing rules. The rule published above varies from its predecessor in certain respects not indicated by the use of these markings.

AMENDATORY SECTION (Amending WSR 97-13-051, filed 6/13/97, effective 7/14/97)

WAC 275-27-023  Exemptions. (1) The department may approve an exemption to a specific rule in this chapter as defined under WAC 275-27-020(((7))) (9) provided an:

(a) Assessment of the exemption shall not undermine the legislative intent of Title 71A RCW; and

(b) Evaluation of the exemption request shows granting the exemption shall not adversely effect the quality of the services, supervision, health, and safety of department-served persons.

(2) Agencies and individual providers shall retain a copy of each department-approved exemption.

(3) Exemption requests are not subject to appeal.

[Statutory Authority: RCW 71A.12.030, 71A.12.040 and Title 71A RCW. 97-13-051, § 275-27-023, filed 6/13/97, effective 7/14/97. Statutory Authority: RCW 71A.16.020. 91-17-005 (Order 3230), § 275-27-023, filed 8/9/91, effective 9/9/91.]

AMENDATORY SECTION (Amending WSR 84-15-058, filed 7/18/84)

WAC 275-27-040  Application for services. (1) ((All applications)) Individuals applying for division services ((shall be filed)) shall file an application with one of the division field services offices in the form and manner required by the director.

(2) An ((application may be made by an)) individual, ((or)) advocate ((for)), ((or)) parent ((or parents)), or guardian of such an individual may file an application for services.

(3) DDD shall inform all applicants about the complete spectrum of service options provided by the division, including the existence and availability of residential habilitation centers and community support services.

[[Statutory Authority: RCW 71.20.070. 84-15-058 (Order 2124), § 275-27-040, filed 7/18/84. Statutory Authority: RCW 72.01.090, 72.33.040, 72.33.125 and 72.33.165. 78-04-033 (Order 1280), § 275-27-040, filed 3/16/78; Order 1143, § 275-27-040, filed 8/11/76.]]

AMENDATORY SECTION (Amending WSR 86-18-049, filed 8/29/86)

WAC 275-27-050  Determination for necessary services. (1) Within sixty days from the date of the division's decision that ((an individual is developmentally disabled)) a person is eligible for division funded services, the appropriate division field services office shall evaluate the ((individual's)) person's needs to determine which services, if any, are necessary to serve the client's best interest. DDD shall explain to the person/family their available service options. In addition, DDD shall do what is reasonable to:

(a) Provide choice of service options within available funding that assists people to remain in their homes and communities;

(b) Plan and develop community support services that take into consideration the unique needs of the individual and family.

(2) ((Upon completion of)) After the evaluation is completed, and if appropriate, the division will develop an individual service plan ((with determination of necessary services shall be prepared)) pursuant to WAC 275-27-060 ((or other department forms as appropriate)).

(3) Determination of necessary services ((shall not be regarded as)) is not a guarantee of service authorization or delivery. Service authorization and delivery of services ((shall be)) are pursuant to WAC 275-27-230.

(4) The department will develop an outreach program to ensure that eligible persons are aware of all of the services provided by DDD, including community support services and residential habilitation centers.

[[Statutory Authority: RCW 71.20.070. 86-18-049 (Order 2418), § 275-27-050, filed 8/29/86; 84-15-058 (Order 2124), § 275-27-050, filed 7/18/84. Statutory Authority: RCW 72.01.090, 72.33.040, 72.33.125 and 72.33.165. 78-04-033 (Order 1280), § 275-27-050, filed 3/16/78; Order 1143, § 275-27-050, filed 8/11/76.]]

AMENDATORY SECTION (Amending WSR 91-17-005, filed 8/9/91, effective 9/9/91)

WAC 275-27-230  Authorization of services. (1) The division's field services section shall be responsible for authorizing services ((received by eligible persons)) agreed to by the person/family including, but not limited to:

(a) Placement to and from residential habilitation centers;

(b) ((Other)) Community residential services;

(c) Family support services; and

(d) Nonresidential programs.

(2) The division's authorization of services shall be based on the availability of services and funding.

(3) The division ((shall)) will include the following persons when determining authorized services:

(a) The person;

(b) The person's parent or guardian and may include:

(i) The person's advocate; or

(ii) Other responsible parties.

(4) ((The division shall not make an emergency or temporary admission of a person to a residential habilitation center for thirty-one days or more without the written approval of the division director or the director's designee.

(5))) Per RCW 71A.116.010 the division shall offer adults the choice of admittance to a residential habilitation center if all of the following conditions exist:

(a) An RHC vacancy is available;

(b) Funding, specifically designated for this purpose in the state operating budget, is available for alternative community support services;

(c) The person or their family is requesting residential services;

(d) The person meets ICF/MR or nursing facility eligibility for the available RHC vacancy;

(e) The person is the most in need of residential services as determined by DDD after reviewing all persons determined eligible for ICF/MR or nursing facility level of care. DDD will make this selection based on the following criteria:

(i) The person is age eighteen or older;

(ii) The person's/family's health and safety is in jeopardy due to the lack of necessary residential support and supervision:

(A) Priority is given to eligible persons/families currently without necessary residential supports;

(B) Other eligible persons will be considered based on their risk of losing residential supports due to unstable or deteriorating circumstances.

(f) The person's alternative DDD funded community support services would cost seventy-five percent or more of the average RHC rate, assuming a minimum household size of three persons.

(5) If RHC capacity is not being used for permanent residents, the division will make these vacancies available for respite care or any other services the department determines are needed.

(a) Admission of a child or adolescent to an RHC for respite care requires the written approval of the division director or designee.

(b) Respite care exceeding thirty days in a calendar year is subject to subsection (6) of this section.

(6) The division shall not make an emergency or temporary admission of a person to a residential habilitation center for thirty-one days or more without the written approval of the division director or the director's designee if the admission is not a choice provided under subsection (4) of this section.

(a) Children twelve years of age and younger shall not be admitted to an RHC.

(b) Admission of an adolescent to an RHC can only occur if:

(i) DDD determines that foster placement services cannot meet the emergency needs of the child/family; and

(ii) A voluntary placement plan is in place with DDD with the goal of community placement or family reunification; and

(iii) Progress towards placement planning is reported to the division director at least every ninety days.

(7) The division shall authorize county-funded services only when the:

(a) Service is included in a department contract; and

(b) Person is at least twenty-one years of age and graduated from school during their twenty-first year; or

(c) Person is twenty-two years of age or older; or

(d) Person is two years of age or younger and eligible for early intervention services.

(((6))) (8) The department shall require a person to participate in defraying the cost of services provided when mandated by state or federal regulation or statute.

[[Statutory Authority: RCW 71A.16.020. 91-17-005 (Order 3230), § 275-27-230, filed 8/9/91, effective 9/9/91. Statutory Authority: RCW 71.20.070. 86-18-049 (Order 2418), § 275-27-230, filed 8/29/86; 84-15-058 (Order 2124), § 275-27-230, filed 7/18/84. Statutory Authority: RCW 71.20.070, 72.33.125 and 72.33.850. 82-06-034 (Order 1771), § 275-27-230, filed 3/1/82. Statutory Authority: RCW 72.01.090, 72.33.040, 72.33.125 and 72.33.165. 78-04-033 (Order 1280), § 275-27-230, filed 3/16/78; Order 1143, § 275-27-230, filed 8/11/76.]]