[atlas:bill]

AN ACT Relating to the siting and oversight of facilities for the treatment and housing of sexually violent predators; amending RCW 71.09.020 and 36.70A.200; adding new sections to chapter 71.09 RCW; creating a new section; prescribing penalties; and declaring an emergency.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

NEW SECTION. Sec. 1. (1) It is the intent of the legislature to:

(a) Enhance public safety and maximize the potential for successful treatment of sexually violent predators through the secure and tightly controlled use of less restrictive alternatives in community-based secure housing facilities;

(b) Maximize the safety of communities in which secure facilities are located and ensure public input into secure housing facilities by enabling community participation in decisions involving these essential public facilities; and

(c) Improve public safety by strengthening the safeguards in placement, oversight, and monitoring of the persons released to a less restrictive alternative in a secure residential facility, and by establishing minimum standards for the siting and operation of secure residential facilities.

(2) The legislature finds that community participation in siting and oversight is vital to the success of secure facilities for less restrictive alternatives.

Sec. 2. RCW 71.09.020 and 1995 c 216 s 1 are each amended to read as follows:

Unless the context clearly requires otherwise, the definitions in this section apply throughout this chapter.

(1) (("Sexually violent predator" means any person who has been convicted of or charged with a crime of sexual violence and who suffers from a mental abnormality or personality disorder which makes the person likely to engage in predatory acts of sexual violence if not confined in a secure facility.

(2) "Mental abnormality" means a congenital or acquired condition affecting the emotional or volitional capacity which predisposes the person to the commission of criminal sexual acts in a degree constituting such person a menace to the health and safety of others.

~~(3)~~)) "Less restrictive alternative" means court-ordered treatment in a setting less restrictive than total confinement.

(2) "Likely to engage in predatory acts of sexual violence" means that the person more probably than not will engage in such acts. Such likelihood must be evidenced by a recent overt act if the person is not totally confined at the time the petition is filed under RCW 71.09.030.

(3) "Mental abnormality" means a congenital or acquired condition affecting the emotional or volitional capacity which predisposes the person to the commission of criminal sexual acts in a degree constituting such person a menace to the health and safety of others.

(4) "Predatory" means acts directed towards strangers or individuals with whom a relationship has been established or promoted for the primary purpose of victimization.

(5) "Recent overt act" means any act that has either caused harm of a sexually violent nature or creates a reasonable apprehension of such harm.

(6) "Risk potential activity" or "risk potential facility" means an activity or facility that provides a higher incidence of risk to the public from persons conditionally released from the special commitment center. Risk potential activities and facilities include: Public and private schools, school bus stops, licensed day care and preschool facilities, public parks, publicly dedicated trails, sports fields, playgrounds, recreational and community centers, churches, synagogues, temples, mosques, and public libraries.

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

(8) "Secure facility" or "secure residential facility" means a residential facility for one or more persons civilly committed under this chapter that has supervision, perimeter controls, and either provides or ensures the provision of sex offender treatment services. Secure facilities include but are not limited to the special commitment center, any step-down facility, and any community-based housing established under this chapter and operated by the secretary or under contract with the secretary for the housing or residential treatment of persons conditionally released from the special commitment center.

(9) "Sexually violent offense" means an act committed on, before, or after July 1, 1990, that is: (a) An act defined in Title 9A RCW as rape in the first degree, rape in the second degree by forcible compulsion, rape of a child in the first or second degree, statutory rape in the first or second degree, indecent liberties by forcible compulsion, indecent liberties against a child under age fourteen, incest against a child under age fourteen, or child molestation in the first or second degree; (b) a felony offense in effect at any time prior to July 1, 1990, that is comparable to a sexually violent offense as defined in (a) of this subsection, or any federal or out-of-state conviction for a felony offense that under the laws of this state would be a sexually violent offense as defined in this subsection; (c) an act of murder in the first or second degree, assault in the first or second degree, assault of a child in the first or second degree, kidnapping in the first or second degree, burglary in the first degree, residential burglary, or unlawful imprisonment, which act, either at the time of sentencing for the offense or subsequently during civil commitment proceedings pursuant to chapter 71.09 RCW, has been determined beyond a reasonable doubt to have been sexually motivated, as that term is defined in RCW 9.94A.030; or (d) an act as described in chapter 9A.28 RCW, that is an attempt, criminal solicitation, or criminal conspiracy to commit one of the felonies designated in (a), (b), or (c) of this subsection.

((~~(7) "Less restrictive alternative" means court-ordered treatment in a setting less restrictive than total confinement.~~

~~(8) "Secretary" means the secretary of social and health services or his or her designee.~~)) (10) "Sexually violent predator" means any person who has been convicted of or charged with a crime of sexual violence and who suffers from a mental abnormality or personality disorder which makes the person likely to engage in predatory acts of sexual violence if not confined in a secure facility.

(11) "Step-down facility" means any secure facility that provides residence for more than five persons as a transition from the special commitment center to a less restrictive placement in the community.

NEW SECTION. Sec. 3. A new section is added to chapter 71.09 RCW to read as follows:

(1) The secretary shall adopt rules that balance the average response time of emergency services to the general area of the proposed facility against the proximity of the proposed site to risk potential activities and facilities in existence at the time the site is listed for consideration.

(2) In balancing the competing criteria of proximity and response time the rule shall not select an average law enforcement response time greater than five minutes and in no case shall the rule permit location of a facility adjacent to, immediately across a street or parking lot from, or within the line of site of a risk potential activity or facility.

(3) The rule-making process shall determine whether a goal of siting facilities in locations with an average law enforcement response time of not greater than three minutes is feasible and document its findings.

(4) Within the selected law enforcement response time, the rule shall require that preference be given to sites that are the farthest removed from any risk potential activity.

(5) The rule shall specify how distance from the location is measured and any variations in the measurement based on the size of the property within which a proposed facility is to be located.

(6) By December 1, 2001, the secretary shall determine and report to the legislature whether there is a significant group of potential locations that are outside of a five-minute law enforcement response time zone that are more than two miles from any risk potential activities and whether, in the secretary's judgment, the legislature should require the rule to be revised to permit consideration of these properties.

NEW SECTION. Sec. 4. A new section is added to chapter 71.09 RCW to read as follows:

The secretary shall establish criteria for the siting of secure residential facilities which shall include at least the following minimum requirements:

(1) Any real property considered for the location of or use as a secure facility must meet all of the following criteria:

(a) The criteria set forth in section 3 of this act;

(b) The site or building is available for lease for the anticipated use period or for purchase;

(d) Appropriate mental health and sex offender treatment providers must be available within a reasonable commute; and

(e) Appropriate permitting for a secure facility must be possible under the zoning code of the local jurisdiction.

(2) For sites which meet the criteria of subsection (1) of this section, the department of social and health services shall establish a method for analyzing and comparing the criteria for each site in terms of public safety and security, site characteristics, and program components. In making a decision regarding a site following the analysis and comparison, priority shall be given to public safety and security. The analysis and comparison of the criteria are to be documented and made available at the public hearings prescribed in section 6 of this act.

(3) Public safety and security criteria shall include at least the following:

(a) Whether the site has limited visibility between the facility and adjacent properties;

(b) Whether unsupervised contact with the public can be limited;

(c) Whether the location has, or can be modified to have visual and physical barriers such as trees, fencing, or freeways to assure privacy and security of neighbors and facility residents;

(d) The distance from, and number of, risk potential activities and facilities, as measured using the rules adopted under section 3 of this act;

(e) The existence of or ability to establish barriers between the site and the risk potential facilities and activities;

(f) Average response time by fire safety and emergency medical personnel is not longer than the average of the local community;

(g) Suitability of the buildings to be used for the secure facility with regard to existing or feasibly modified security precautions, including size, floor plan, and staff accommodations; and

(h) The availability of electronic monitoring that allows a resident's location to be determined with specificity.

(4) Site characteristics criteria shall include at least the following:

(a) Overall condition of the buildings related to the health and safety of the residents and staff;

(b) Reasonableness of rental, lease, or sale terms including length and renewability of a lease or rental agreement;

(d) Feasibility of complying with zoning requirements within the necessary time frame; and

(e) A contractor or contractors are available to install, monitor, and repair security and alarm systems specified in section 5 of this act.

(5) Program characteristics criteria shall include at least the following:

(a) Reasonable proximity to available medical, mental health, sex offender, and chemical dependency treatment providers and facilities;

(b) Suitability of the location for programming considerations;

(d) Availability of support from the special commitment center or, in the case of facilities serving one to five conditionally released persons, support from the step-down facility;

(e) Proximity to employment, educational, vocational, and other treatment plan components;

(f) Reasonable access to community support groups;

(g) Program staffing by trained professionals with minimum qualifications equivalent to those specified by the state residential rehabilitation counselor I, II, or III job classes. Prior to assignment to duties in a residential less restrictive alternative under this chapter, each staff member must successfully complete a department-approved training curriculum that includes programming and treatment requirements specific to sexually violent predators. All staff must participate in ongoing training in issues related to sexually violent predators. Training may take the form of in-service training programs;

(h) In facilities housing five or fewer residents, a minimum staffing ratio of one staff per resident during normal waking hours and two awake staff during normal sleeping hours. In no case shall all staff on a shift be persons classified as residential rehabilitation counselor I or persons with equivalent qualifications; and

(i) At least one staff member, or other court-appointed and department-approved person must escort each resident when the resident leaves the site for appointments, employment, or other approved activities. Escorting persons must supervise the resident closely and maintain close proximity to the resident.

(6) For purposes of this section "available" or "availability" of qualified treatment providers includes provider qualifications and willingness to provide services, average commute time, and cost of services.

NEW SECTION. Sec. 5. A new section is added to chapter 71.09 RCW to read as follows:

Security systems for secure residential facilities housing five or fewer residents shall meet the following minimum qualifications.

(1)(a) The security panel must be a commercial grade panel with tamper-proof switches and a key-lock to prevent unauthorized access.

(b) The panel and signal must report all local conditions and disturbances to the alarm center monitoring station including, but not limited to tampering with secured openings, doors, windows, attic and crawl space hatches, glass breakage, and motion detectors. The system must activate localized notification for all security breaches and report concurrently to the alarm center monitoring station for additional support.

(2)(a) There must be an emergency electrical supply system which shall include a generator and any converters needed to provide power for the security system and door locks, plumbing and sanitary systems, emergency lighting, and refrigerator.

(b) The security system must have back-up monitoring capability sufficient to provide twelve hours of standby capacity to protect against short power failures and maintain performance requirements.

(c) The back-up system must monitor reserve battery capacity and report low battery condition to the alarm system monitoring station with sufficient time to provide uninterrupted services for critical-path-functioning.

(d) The back-up system must include rechargeable batteries and an in-line emergency power generator to provide uncompromised security during extended power outages.

(3) The system must be computer controlled and password protected to permit off-site monitoring of secure access and levels of operation including, but not limited to arming and disarming the system, modification of codes and access levels, and ingress and egress of the facility.

(4) The system must include panic devices that provide listening and monitoring capabilities to an off-site station for summoning emergency support. Panic devices must be issued to all staff and be capable of being mounted on a desk or worn on the person as staff chooses.

(5)(a) Ingress and egress must be controlled through a computer controlled card-swipe and reader system capable of reading department-issued photo-identification cards. Each perimeter door and hatch must be secured with electronic locks and appropriate hardware, including card-swipe readers to secure the entry point. Card-swipe readers must record individual identification, time, and frequency of access.

(b) The card-swipe system must have a back-up system with twelve hours of power supply and be integrated with the back-up generator system for extended power outages.

(6)(a) All doors and windows must be electronically secured with a contact system to prevent unauthorized opening. All windows must be armor coated to reduce the risk of breakage and unauthorized use.

(b) All attic and crawl spaces must be fitted with secure lockable coverings and equipped with remote contacts for preventing unauthorized use.

(c) Only a departmentally issued employee identification badge with an appropriate access level coding may be used to arm or disarm the system.

(7) The security system must be capable of being monitored and signaled either by telephone through either a land or cellular telephone system or by private radio network in the event of a total dial-tone failure.

(8) The department will issue photo-identification badges to all staff which must be worn at all times.

NEW SECTION. Sec. 6. A new section is added to chapter 71.09 RCW to read as follows:

(1) Whenever the department of social and health services operates, or the secretary enters a contract to operate, a secure facility, the secure facility may be operated only after the public notification and opportunities for review and comment as required by this section.

(2) The secretary shall establish a process for early and continuous public participation in establishing or relocating secure facilities. The process shall include, at a minimum, public meetings in the local communities affected, as well as opportunities for written and oral comments, in the following manner:

(a) If there are more than three sites initially selected as potential locations and the selection process by the secretary or a service provider reduces the number of possible sites for a secure facility to no fewer than three, the secretary or the chief operating officer of the service provider shall notify the public of the possible siting and hold at least two public hearings in each community where a secure facility may be sited.

(b) When the secretary or service provider has determined the secure facility's location, the secretary or the chief operating officer of the service provider shall hold at least one additional public hearing in the community where the secure facility will be sited.

(c) When the secretary has entered negotiations with a service provider and only one site is under consideration, then at least two public hearings shall be held.

(d) To provide adequate notice of, and opportunity for interested persons to comment on, a proposed location, the secretary or the chief operating officer of the service provider shall provide at least fourteen days' advance notice of the meeting to all newspapers of general circulation in the community, all radio and television stations generally available to persons in the community, any school district in which the secure facility would be sited or whose boundary is within two miles of a proposed secure facility, any library district in which the secure facility would be sited, local business or fraternal organizations that request notification from the secretary or agency, and any person or property owner within a one-half mile radius of the proposed secure facility. Before initiating this process, the department of social and health services shall contact local government planning agencies in the communities containing the proposed secure facility. The department of social and health services shall coordinate with local government agencies to ensure that opportunities are provided for effective citizen input and to reduce the duplication of notice and meetings.

(3) This section applies only to secure facilities sited after the effective date of this act.

NEW SECTION. Sec. 7. A new section is added to chapter 71.09 RCW to read as follows:

(1) The secretary shall develop a process with local governments that allows each community in which a secure residential facility is located to establish operational advisory boards for the secure facilities. The department of social and health services may conduct community awareness activities to publicize this opportunity. The operational advisory boards developed under this section shall be implemented following the decision to locate a secure facility in a particular community.

(2) The operational advisory boards may review and make recommendations regarding the security and operations of the secure facility and conditions or modifications necessary with relation to any person who the secretary proposes to place in the secure facility.

(3) The operational advisory boards, their members, and any agency represented by a member shall not be liable in any cause of action as a result of its recommendations unless the committee acts with gross negligence or bad faith in making a recommendation.

(4) Members of a board shall be reimbursed for travel expenses as provided in RCW 43.03.050 and 43.03.060.

NEW SECTION. Sec. 8. A new section is added to chapter 71.09 RCW to read as follows:

(1) The secretary shall adopt a violation reporting policy for persons conditionally released to secure placements in secure facilities. The policy shall require written documentation by the department of social and health services and service providers of all violations of conditions set by the department of social and health services, the department of corrections, or the court and establish criteria for returning a violator to the special commitment center or a step-down facility. Any conditionally released person who commits a serious violation of conditions shall be returned to the special commitment center and the court shall be notified. The secretary shall not return a person to a secure facility until a new assessment has been completed and the secretary reasonably believes that the person can adhere to the conditions or until ordered by a court. For the purposes of this section, "serious violation" includes but is not limited to:

(a) The commission of any criminal offense;

(b) Any unlawful use or possession of a controlled substance; and

(c) Any violation of conditions targeted to address the person's documented pattern of offense that increases the risk to public safety.

When a person is released to a less restrictive alternative in a secure residential facility under this chapter and is under the supervision of the department of corrections, notice of any violation of the person's conditions of release must also be made to the department of corrections.

(2) Whenever the secretary contracts with a service provider to operate a secure facility, the contract shall include a requirement that the service provider must report to the department of social and health services any known violation of conditions committed by any resident of the secure facility.

(3) The secretary shall document in writing all violations, penalties, actions by the department of social and health services to remove persons from a secure residential facility, and contract terminations. The secretary shall give great weight to a service provider's record of violations, penalties, actions by the department of social and health services or the department of corrections to remove persons from a secure facility, and contract terminations in determining to execute, renew, or renegotiate a contract with a service provider.

NEW SECTION. Sec. 9. A new section is added to chapter 71.09 RCW to read as follows:

The department of social and health services shall work with local jurisdictions to establish zoning for secure residential facilities. Secure residential facilities are essential public facilities under RCW 36.70A.200.

Sec. 10. RCW 36.70A.200 and 1998 c 171 s 3 are each amended to read as follows:

(1) The comprehensive plan of each county and city that is planning under this chapter shall include a process for identifying and siting essential public facilities. Essential public facilities include those facilities that are typically difficult to site, such as airports, state education facilities and state or regional transportation facilities as defined in RCW 47.06.140, state and local correctional facilities, solid waste handling facilities, and in-patient facilities including substance abuse facilities, mental health facilities, ((~~and~~)) group homes, and secure residential facilities as defined in RCW 71.09.020.

(2) The office of financial management shall maintain a list of those essential state public facilities that are required or likely to be built within the next six years. The office of financial management may at any time add facilities to the list. No local comprehensive plan or development regulation may preclude the siting of essential public facilities.

NEW SECTION. Sec. 11. A new section is added to chapter 71.09 RCW to read as follows:

The secretary shall adopt rules to implement this act. The rules shall contain a schedule of monetary penalties for contractors operating secure facilities, not to exceed the total compensation set forth in the contract, and include provisions for termination of all contracts with a service provider that has repeated or serious violations of this section.

NEW SECTION. Sec. 12. This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and takes effect immediately.