Purpose: The purpose of these rules is to eliminate the direct payment to recipients for employment/day program services and return the funding for administering these programs to the counties.

     Citation of Existing Rules Affected by this Order: Repealing WAC 388-825-060, 388-825-064, 388-825-070, 388-825-075, 388-825-076, 388-825-077, 388-825-078, 388-825-085, 388-825-086, 388-825-087, 388-825-090 and 388-825-095; and amending WAC 388-825-055, 388-825-103, 388-850-035, and 388-850-045.

     Statutory Authority for Adoption: RCW 71A.12.030, 71A12.120 [71A.12.120], 71A.14.040.

     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: These rules are necessary to increase federal funding under Title XIX of the Social Security Act. 42 C.F.R. 447.10(d) and Section 1902 (a)(32) of the Social Security Act prohibit the state from claiming federal financial participation (FFP) for payments directly to a recipient of Title XIX Medicaid. By returning this funding to the counties, who will pay the provider rather than the recipient directly, the state is able to claim FFP for these expenditures.

     The second filing of these emergency rules is necessary to extend the existing emergency rules filed as WSR 05-01-123 while the department completes the regular rule-making process. The CR-102 proposed rule-making notice was filed as WSR 05-05-084 and the public hearing was held on March 22, 2005.

     Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 4, Repealed 12; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 0, Repealed 0.

     Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.

     Number of Sections Adopted on the Agency's Own Initiative: New 0, Amended 0, Repealed 0.

     Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 0, Repealed 0.

     Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0;      Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 0, Amended 4, Repealed 12.

     Date Adopted: April 8, 2005.

Andy Fernando, Manager

Rules and Policies Assistance Unit

     (((a))) (2) The department shall pay a county for department authorized services provided to an eligible developmentally disabled person.

     (((b) DD eligible persons who receive funding from DDD directly for employment or day program services shall pay the county or a county contracted provider for services.

     (2))) (3) A county may purchase or provide authorized services. Authorized services may include, but are not limited to:

     (a) Early childhood intervention services;

     (b) Employment services;

     (c) Community access services;

     (d) Residential services;

     (e) Individual evaluation;

     (f) Program evaluation;

     (g) County planning and administration; and

     (h) Consultation and staff development((; and

     (i) Oversight of the DDD money sent directly to the DDD eligible person)).

[Statutory Authority: RCW 71A.12.030, 71A.10.020 and 2002 c 371. 04-02-014, § 388-850-035, filed 12/29/03, effective 1/29/04. 99-19-104, recodified as § 388-850-035, filed 9/20/99, effective 9/20/99. Statutory Authority: RCW 71A.14.030. 91-17-005 (Order 3230), § 275-25-520, filed 8/9/91, effective 9/9/91. Statutory Authority: RCW 71.20.070, 72.33.125 and 72.33.850. 82-06-034 (Order 1771), § 275-25-520, filed 3/1/82. Statutory Authority: RCW 71.20.030, 71.20.050, and 71.20.070. 78-04-002 (Order 1278), § 275-25-520, filed 3/2/78; Order 1142, § 275-25-520, filed 8/12/76.]

     (2) The allocation of funds to counties shall be based on the following criteria:

     (a) Each county shall receive a base amount of funds. The amount shall be based on the prior biennial allocation, including any funds from budget provisos from the prior biennium, and subject to the availability of state and federal funds;

     (b) The distribution of any additional funds provided by the legislature or other sources shall be based on a distribution formula which best meets the needs of the population to be served as follows:

     (i) On a basis which takes into consideration minimum grant amounts, requirements of clients residing in an ICF/MR or clients on one of the division's Title XIX home and community-based waivers, and the general population of the county, and special education enrollment as well as the population eligible for county-funded developmental disabilities services;

     (ii) On a basis that takes into consideration the population numbers of minority groups residing within the county;

     (iii) A biennial adjustment shall be made after these factors are considered; and

     (iv) Counties not receiving any portion of additional funds pursuant to this formula shall not have their base allocation reduced due to application of this formula.

     (c) Funding appropriated through legislative proviso, including vendor rate increases, shall be distributed to the population directed by the legislature utilizing a formula as directed by the legislature or using a formula specific to that population or distributed to identified people;

     (d) The ability of the community to provide funds for the developmental disability program provided in chapter 71A.14 RCW may be considered with any or all of the above.

     (3)(((a))) A county may utilize seven or less percent of the county's allocated funds for county administrative expenses. A county may utilize more than seven percent for county administration with approval of the division director. A county electing to provide all services directly, in addition to county administration, is exempt from this requirement.

     (((b) A county may receive funds for oversight of employment/day program services purchased by DDD clients with money sent directly to the client based on the following conditions:

     (i) The oversight funds for the recipients described below will be allocated at the same rate that the county received in their original 2001-2003 DDD county program agreement for administrative expenses for these same individuals. These funds will be calculated by using the date the recipient began receiving funds directly if the recipient:

     (A) Was born between September 1, 1979 and August 31, 1981; and

     (B) Received a county or county-contracted service between July 1, 2001 and June 30, 2002; and

     (C) Continues to receive a county or county-contracted service.

     (ii) Oversight funds for the recipients described below will be allocated at the same rate that the county received in their original 2001-2003 DDD county program agreement for administrative expenses for these same individuals. These funds will be calculated by using the date the recipient began receiving funds directly if the recipient:

     (A) Was born prior to September 1, 1979; and

     (B) Was authorized by DDD and the county for employment/day program services for December, 2002; and

     (C) Continues to receive a county or county-contracted service.

     (iii) The oversight funds for recipients described below shall equal up to seven percent of the amount of the funds received directly by the recipient, if the recipient:

     (A) Was born between September 1, 1979 and August 31, 1981; and

     (B) Received no county or county-contracted service prior to July 1, 2002; and

     (C) Received or will receive a county or county-contracted service between July 1, 2002 and June 30, 2003; and

     (D) Continues to receive a county or county-contracted service.))

     (4) The department may withhold five or less percent of allocated funds for new programs, for statewide priority programs, and for emergency needs.

[Statutory Authority: RCW 71A.12.030, 71A.10.020 and 2002 c 371. 04-02-014, § 388-850-045, filed 12/29/03, effective 1/29/04. 99-19-104, recodified as § 388-850-045, filed 9/20/99, effective 9/20/99. Statutory Authority: RCW 71A.14.040. 92-13-032 (Order 3404), § 275-25-530, filed 6/10/92, effective 7/11/92. Statutory Authority: RCW 71A.14.030. 91-17-005 and 91-17-025 (Orders 3230 and 3230A), § 275-25-530, filed 8/9/91 and 8/14/91, effective 9/9/91 and 9/14/91. Statutory Authority: RCW 69.54.040 and 71.24.190. 83-03-011 (Order 1936), § 275-25-530, filed 1/12/83; Order 1142, § 275-25-530, filed 8/12/76.]

     (a) Placement to and from residential habilitation centers;

     (b) Community residential services;

     (c) Family support services;

     (d) Nonresidential programs; and

     (e) Employment/day programs ((when the person receives the funding directly from DDD to pay for the services, subject to the eligibility requirements in WAC 388-825-060 and the restrictions in WAC 388-825-065. Allowable employment/day program services are listed in WAC 388-850-035)).

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

     (a) Persons must meet the programmatic and financial eligibility requirements for the specific services;

     (b) Funding for state paid services is available in the state operating budget; and

     (c) SSP funding is not available to the client.

     (3) The division 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) Per RCW 71A.16.010 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 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 and allowable within the rules governing the use of federal funds.

     (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 service is included in a department contract ((and the person is not receiving funding directly from DDD for employment/day program services)) and:

     (a) The person is at least twenty-one years of age and is no longer attending school; or

     (b) The person is age twenty and graduates prior to his/her July or August twenty-first birthday; or

     (c) The child is two years of age or younger and eligible for early intervention services.

     (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.12.030, 71A.10.020 and 2002 c 371. 04-02-014, § 388-825-055, filed 12/29/03, effective 1/29/04. Statutory Authority: RCW 71A.16.010, 71A.16.030, 71A.12.030, chapter 71A.20 RCW, RCW 72.01.090, and 72.33.125. 02-16-014, § 388-825-055, filed 7/25/02, effective 8/25/02; 99-19-104, recodified as § 388-825-055, filed 9/20/99, effective 9/20/99. Statutory Authority: RCW 74.12A.030 and 71A.16.030. 98-20-044, § 275-27-230, filed 9/30/98, effective 10/7/98. 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.]

     (1) The denial or termination of eligibility under WAC 388-825-030 and 388-825-035;

     (2) The authorization, denial, reduction, or termination of services ((or funds paid directly to you set forth in WAC 388-825-055)) or the payment of SSP set forth in chapter 388-827 WAC that are authorized by DDD;

     (3) The admission or readmission to, or discharge from a residential habilitation center.

[Statutory Authority: RCW 71A.12.030, 71A.10.020, and 71A.16.040. 04-15-093, § 388-825-103, filed 7/16/04, effective 8/16/04.]

     The following sections of the Washington Administrative Code are repealed:

WAC 388-825-060	What are the eligibility requirements for persons who receive funds directly for employment/day programs?
WAC 388-825-064	What are the restrictions on the use of the funds paid directly to persons for employment/day programs?
WAC 388-825-070	What happens if I do not spend the funds paid directly to me for employment/day programs as specified in WAC 388-825-064?
WAC 388-825-075	How much money will I receive?
WAC 388-825-076	How often will I receive a direct payment check for my employment/day program services?
WAC 388-825-077	Who will the warrant/check be sent to?
WAC 388-825-078	How will the warrant/check be sent?
WAC 388-825-085	What is a representative payee?
WAC 388-825-086	Who can be a representative payee for my DDD direct payment funds for employment/day program services?
WAC 388-825-087	What are the responsibilities of a representative payee?
WAC 388-825-090	When will DDD recover direct payment funds sent to me for employment/day program services?
WAC 388-825-095	Who is liable for repayment of an overpayment?

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