SOCIAL AND HEALTH SERVICES
(Aging and Disability Services Administration)
Preproposal statement of inquiry was filed as WSR 06-08-034.
Title of Rule and Other Identifying Information: Chapter
388-831 WAC, Community protection program.
|Washington Administrative Code||Effect of Rule|
|388-831-0010 Definitions (New)||Adds definitions used in this chapter.|
|388-831-0020 (New)||Defines the community protection program (CPP).|
|388-831-0030 (New)||Defines individuals with community protection issues.|
|388-831-0040 (New)||Defines who is covered by these rules.|
|388-831-0050 (New)||Defines the steps necessary to receive services.|
|388-831-0060 (New)||Defines what is contained in the assessment.|
|388-831-0065 (New)||Defines what happens for refusal to participate in the assessment.|
|388-831-0070 (New)||Describes what information will be given to individuals considered for placement in the CPP.|
|388-831-0080 (New)||Describes the notification requirement to individuals who are appropriate for placement in the CPP.|
|388-831-0090 (New)||Describes the notification requirement to individuals who cannot be managed successfully in the CPP|
|388-831-0100 (New)||Explains how to apply for the CPP.|
|388-831-0110 (New)||Describes what information will be shared with others.|
|388-831-0120 (New)||Describes what the services will be.|
|388-831-0130 (New)||Describes the services available in the CPP.|
|388-831-0150 (New)||Defines who can provide therapy.|
|388-831-0160 (New)||Describes the services available for individuals who refuse placement in the CPP.|
|388-831-0200 (New)||Defines how often progress will be reviewed.|
|388-831-0210 (New)||Defines what is included in the review of progress.|
|388-831-0220 (New)||Defines when placement in a less restrictive setting may be considered.|
|388-831-0230 (New)||Describes the process to move to a less restrictive setting.|
|388-831-0240 (New)||Defines when termination from the CPP may occur.|
|388-831-0250 (New)||Describes that participation in the CPP is voluntary but limits the services available if this occurs.|
|388-831-0260 (New)||Defines where the enforcement rules against a provider of residential services and support may be found.|
|388-831-0300 (New)||Defines the appeal rights for individuals receiving services through the CPP waiver.|
|388-831-0400 (New)||Clarifies that nothing in these rules create an entitlement to placement on the CPP waiver.|
Hearing Location(s): Blake Office Park East, Rose Room, 4500 10th Avenue S.E., Lacey, WA 98503 (one block north of the intersection of Pacific Avenue S.E. and Alhadeff Lane. A map or directions are available at http://www1.dshs.wa.gov/msa/rpau/docket.html or by calling (360) 664-6094), on September 23, 2008, at 10:00 a.m.
Date of Intended Adoption: September 24, 2008.
Submit Written Comments to: DSHS Rules Coordinator, P.O. Box 45850, Olympia, WA 98504-5850, delivery 4500 10th Avenue S.E., Lacey, WA 98503, e-mail DSHSRPAURulesCoordinator@dshs.wa.gov, fax (360) 664-6185, by
5:00 p.m. on September 23, 2008.
Assistance for Persons with Disabilities: Contact Jennisha Johnson, DSHS rules consultant, by September 16, 2008, TTY (360) 664-6178 or (360) 664-6094 or by e-mail at firstname.lastname@example.org.
Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: The division of developmental disabilities (DDD) is creating a new chapter 388-831 WAC, Community protection program, to implement chapter 303, Laws of 2006 (ESSB 6630).
Reasons Supporting Proposal: This chapter codifies the rules relating to the administration of the community protection program as directed by the legislature.
Statutory Authority for Adoption: RCW 71A.12.030, ESSB 6630, Laws of 2006.
Statute Being Implemented: Title 71A RCW.
Rule is not necessitated by federal law, federal or state court decision.
Name of Proponent: Department of social and health services, governmental.
Name of Agency Personnel Responsible for Drafting: Steve Brink, 640 Woodland Square Loop S.E., Lacey, WA 98503-1045, P.O. Box 45310, Olympia, WA 98507-5310, e-mail email@example.com, (360) 725-3416, fax (360) 404-0955; Implementation: Shirley Everard, 640 Woodland Square Loop S.E., Lacey, WA 98503-1045, P.O. Box 45310, Olympia, WA 98507-5310, e-mail EveraSH@dshs.wa.gov, (360) 725-3444, fax (360) 404-0955; and Enforcement: Doug Washburn, 640 Woodland Square Loop S.E., Lacey, WA 98503-1045, P.O. Box 45310, Olympia, WA 98507-5310, e-mail firstname.lastname@example.org, (360) 725-3452, fax (360) 404-0955.
No small business economic impact statement has been prepared under chapter 19.85 RCW. The DDD has analyzed the rules and determined that they do not affect small businesses and nonprofits.
A cost-benefit analysis is not required under RCW 34.05.328. These rules are exempt from a cost-benefit analysis pursuant to RCW 34.05. (5)(b)(iii) and (vii) as they adopt Washington state statutes and relate to client medical or financial eligibility.
August 1, 2008
Stephanie E. Schiller
COMMUNITY PROTECTION PROGRAM
"Certified community protection program residential services" means access to twenty-four hour supervision, instruction, and support services as identified in the person's individual support plan.
"Community protection program" See WAC 388-831-0020.
"Constitutes a risk to others" means a determination of a person's risk and/or dangerousness based upon a thorough assessment by a qualified professional. Actuarial risk assessment instruments should be used to supplement clinical judgment whenever appropriate.
"Department" means the department of social and health services.
"Developmental disability" means that condition defined in WAC 388-823-0040 and RCW 71A.10.020(3).
"Disclosure" means providing copies of professional assessments, incident reports, legal documents, and other information pertaining to community protection issues to ensure the provider has all relevant information. Polygraph and plethysmograph reports are excluded from disclosure.
"Division" means the division of developmental disabilities (DDD).
"Managed successfully" means that a person supported by a community protection program does not engage in the behavior identified in WAC 388-831-0030 and RCW 71A.12.210.
"Opportunistic behavior" means an act committed on impulse, which is not premeditated. In determining whether an act is opportunistic, the original motive or intent of the offense or crime will be considered.
"Predatory" means acts directed toward strangers, individuals with whom a relationship has been established or promoted for the primary purpose of victimization, or casual acquaintances with whom no substantial personal relationship exists. Predatory behavior may be characterized by planning and/or rehearsing the act, stalking, and/or grooming the victim.
"Program participant" means a person who has agreed to and is receiving services and supports in the community protection program.
"Qualified professional" means a licensed psychologist, psychiatrist, or a certified or affiliate sex offender treatment provider with at least three years prior experience working with individuals with developmental disabilities, and:
• If the person being assessed has demonstrated sexually aggressive or sexually violent behavior, that person must be assessed by a certified sex offender treatment provider, or affiliate sex offender treatment provider working under the supervision of a certified sex offender treatment provider; or
• If the person being assessed has demonstrated violent, dangerous, or aggressive behavior, that person must be assessed by a licensed psychologist or psychiatrist who has received specialized training in the treatment of or has at least three years prior experience treating violent or aggressive behavior.
"Restrictive procedures" or "Restrictions" means procedures that restrict a client's freedom of movement, restrict access to client property, prevent a client from doing something the client wants to do, require a client to do something the client does not want to do, or remove something the client owns or has earned.
"Risk assessment" means the written opinion of a qualified professional stating, at a minimum:
• Whether a person meets the criteria in WAC 388-831-0030 and RCW 71A.12.210; and
• What restrictions are necessary to keep people safe.
"Service provider" means a person or agency contracted with the department or a sub-contractor who delivers services and supports to a community protection program participant.
"Specialized environment" means a place where the program participant has agreed to supervision in a safe, structured manner specifying rules, requirements, restrictions, and expectations for personal responsibility in order to maximize community safety.
"Treatment team" means the program participant and the group of people responsible for the development, implementation, and monitoring of the person's individual supports and services. This group may include, but is not limited to, the case resource manager, therapist, residential provider, employment/day program provider, and the person's legal representative and/or family, provided the person agrees to the family member's involvement.
"Violent offense" means any felony defined as a violent offense in RCW 9.94A.030.
"Waiver" means the community-based program funded under section 1915(c) of Title XIX of the federal social security act and chapter 388-845 WAC.
(2) Community protection services and supports are designed to assist program participants to live safely and successfully in the community while minimizing the risk to public safety.
(3) Participation in the program is voluntary.
(1) You have been determined to have a developmental disability as defined in WAC 388-823-0040 and RCW 71A.10.020(3); and
(2) You have been identified by DDD as a person who meets one or more of the following:
(a) You have been charged with or convicted of a crime of sexual violence as defined in chapter 9A.44 or 71.09 RCW;
(b) You have been charged with or convicted of a crime involving sexual acts directed towards strangers or individuals with whom a relationship has been established or promoted for the primary purpose of victimization, or persons of casual acquaintance with whom no substantial personal relationship exists;
(c) You have been charged with or convicted of one or more violent crimes as defined in RCW 9.94A.030(45);
(d) You have not been charged with or convicted of a crime identified in (2)(a), (b), or (c) above, but you have a history of stalking, sexually violent, predatory and/or opportunistic behavior which demonstrates a likelihood to commit a sexually violent and/or predatory act based on current behaviors that may escalate to violence, as determined by a qualified professional; and
(3) You constitute a current risk to others as determined by a qualified professional.
(4) Charges or crimes that result in acquittal are excluded.
(1) Receive an assessment of risk and/or dangerousness by a qualified professional, as specified in WAC 388-831-0060;
(a) You and your representative have the right to choose the qualified professional who is contracted with the state;
(b) The division will provide you with a list of these qualified professionals; and
(2) Be informed of the information contained in WAC 388-831-0070.
(2) The risk assessment must contain:
(a) A determination by a qualified professional whether your behaviors can be managed successfully in the community with reasonably available safeguards;
(b) A determination that lesser restrictive residential placement alternatives have been considered and would not be reasonable for your situation;
(c) Recommendations for treatment; and
(d) A list of necessary restrictions and the reason for them.
(3) The division may request an additional evaluation by a qualified professional who is contracted with the state.
(2) Your name will be placed on the specialized client database. This database identifies individuals who may present a danger to their communities.
(3) If DDD determines it can provide only case management and personal care, you and your legal representative will receive a notice of the determination that explains the decision and your right to appeal that decision.
(1) Limitations regarding the services that will be available due to your community protection issues;
(2) Disclosure requirements as a condition of receiving services other than case management;
(3) The requirement to engage in therapeutic treatment if it is a condition of receiving certain services;
(4) Anticipated restrictions that may be provided, such as intensive supervision and/or limited access to television viewing, reading material and videos;
(5) The right to decline services;
(6) The anticipated consequences of declining services, such as the loss of existing services and/or removal from waiver services;
(7) The right to an administrative hearing as specified in WAC 388-825-120 through WAC 388-825-165, including an emergency adjudicative proceeding as specified in RCW 34.05.479;
(8) The requirement to sign a preplacement agreement as a condition of receiving community protection program residential services;
(9) The right to retain current services as specified in WAC 388-825-145 or 388-825-150;
(10) The right to refuse to participate in the program; and
(11) Information about how to contact a disability rights organization.
(2) This notification does not guarantee placement within the community protection program.
(3) If the division determines that you are not appropriate for placement in the community protection program, you and your legal representative will receive a notice in writing of the determination by the division that you do not meet the criteria for placement within the community protection program.
|Region 6||Port Angeles
(a) Prospective community protection service providers; and
(b) Your current service providers.
(2) The division will not authorize any services without disclosure of your community protection issues.
(1) Consistent with your individual support and supervision needs as specified in your individual support plan;
(2) Consistent with your individual treatment plan, which includes your most recent treatment goals and current restrictions; and
(3) Provided in the least restrictive manner and environment that minimizes the likelihood of offending behavior.
(2) Your residential services must be provided by a certified community protection intensive supported living services provider. Community protection intensive supported living services provide:
(a) An opportunity for you to live successfully in the community;
(b) A specialized environment in which you are supported to make positive choices to reduce the behaviors that require intensive intervention and supervision.
(3) Your employment services as defined in WAC 388-845-1200, 388-845-1400, and 388-845-2100 must be provided by a qualified community protection employment program service provider.
(1) Your therapy must be provided by a qualified professional who:
(a) Has at least three years experience treating individuals with developmental disabilities and community protection issues;
(b) Is in good standing with the department of health, health professions quality assurance division;
(c) Is within a reasonable distance of your residence; and
(d) Is contracted with the department.
(2) Only a certified sex offender treatment provider (SOTP) or an affiliate sex offender treatment provider working under the supervision of a certified SOTP may provide sexual deviancy treatment.
(3) Any restrictive procedures used during your therapy or as part of your treatment must follow requirements for restrictive procedures developed by the department.
(2) If a treatment team member has reason to believe that your circumstances have changed significantly, the team member may request that a risk reassessment be conducted at any time.
(a) Evaluating the use of less restrictive measures;
(b) Making changes in your program as necessary;
(c) Reviewing all restrictions and recommending reductions, if appropriate.
(2) The therapist must write a report annually evaluating your risk of offense and/or risk of behaviors that are dangerous to you or others.
(2) If you request placement in a less restrictive residential setting and that request is denied, you and your legal representative will receive a notice of the determination by DDD, explaining the reason for the denial and your right to appeal this decision.
(a) Written verification of your treatment progress and an assessment of low risk of reoffense and/or dangerousness by your therapist;
(b) A recommendation by your therapist that you are ready for reductions in supervision and restrictions;
(c) Development of a gradual phase out plan by the treatment team, projected over a reasonable period of time, which includes specific criteria for evaluating reductions in restrictions, especially supervision;
(d) Compliance with reduced restrictions;
(e) The absence of any incidents that may indicate relapse for a period of twelve months;
(f) An assessment by a qualified professional consistent with the division guidelines for risk assessment and psychosexual evaluations containing:
(i) An evaluation of your risk of reoffense and/or dangerousness; and
(ii) An opinion as to whether or not you can be managed successfully in a less restrictive community residential setting; and
(g) A recommendation as to suitable placement by the treatment team.
(2) When the treatment team agrees that you are ready to move to a less restrictive community residential placement, you will receive a written plan that details what supports and services, including the level of supervision, you will receive in the less restrictive community residential placement.
(3) If you meet the eligibility requirements described in WAC 388-845-0030, you are eligible for waiver services and will be placed on a waiver that meets your needs.
(1) You physically assault program participants, staff or others;
(2) You repeatedly elope from the program or evade supervision;
(3) You engage in illegal behavior of any kind; or
(4) You refuse to comply with program and/or treatment guidelines to the extent that your therapist determines you are not amenable to treatment; or
(5) The division determines that your health and safety needs cannot be met in the program.
(2) In addition to the right to appeal department actions described in WAC 388-825-120(3), if you receive services through the division's community protection waiver you have the right to appeal the following decisions by the division:
(a) Termination of community protection waiver eligibility;
(b) Your assignment to the community protection waiver; and
(c) Denial of a request for a less restrictive community residential placement.
(3) You may appeal final administrative decisions pursuant to the provisions of RCW 34.05.510 through 34.05.598.
(4) You do not have the right to an administrative hearing on the division's decision denying you placement on the community protection waiver.