BILL REQ. #:  Z-0588.1 

Read first time 02/03/2003.   Referred to Committee on Children & Family Services.

     AN ACT Relating to the prioritization of services to persons with developmental disabilities by the department of social and health services to promote the independence of the individual and other natural and community-based supports; amending RCW 71A.10.020, 71A.10.030, 71A.10.050, 71A.12.020, 71A.12.050, 71A.12.090, 71A.18.010, 71A.18.020, 71A.18.030, 71A.18.050, 35.82.285, 71A.20.010, and 84.36.042; adding new sections to chapter 71A.10 RCW; adding new sections to chapter 71A.18 RCW; repealing RCW 71A.10.010, 71A.10.011, 71A.10.800, 71A.10.805, 71A.10.900, 71A.10.901, 71A.10.902, 71A.16.020, 71A.16.030, 71A.16.040, 71A.16.050, and 71A.16.010; providing an effective date; and declaring an emergency.

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

NEW SECTION.  Sec. 1   A new section is added to chapter 71A.10 RCW to read as follows:
     The legislature finds the delivery of services to persons with developmental disabilities should be prioritized based upon individual needs assessment that measures health and safety concerns. Families or other natural supports are the primary care system for people with developmental disabilities. Family and other natural supports should be encouraged through a continuum of services. Limited state resources should be allocated in a manner that maximizes the use of individual family and natural supports for the longest period of time, enabling the individual to be independent and not reliant upon institutional or residential care services until such time as these services are required in order to reasonably assure the health and safety of the individual. The immediate implementation of this act is necessary for support of state government and its institutions and programs.

Sec. 2   RCW 71A.10.020 and 1998 c 216 s 2 are each amended to read as follows:
     As used in this title, the following terms have the meanings indicated unless the context clearly requires otherwise.
     (1) "Community residential support services," or "community support services," and "in-home services" means one or more of the services listed in RCW 71A.12.040.
     (2) "Department" means the department of social and health services.
     (3) "Developmental disability" means a disability attributable to mental retardation, cerebral palsy, epilepsy, autism, or another neurological or other condition of an individual found by the ((secretary)) department to be closely related to mental retardation ((or)) and to require treatment similar to that required for individuals with mental retardation, which disability or other neurological or other condition originates before the individual attains age eighteen, and which has continued or can be expected to continue indefinitely, and which constitutes a substantial handicap to the individual. ((By January 1, 1989, the department shall promulgate rules which define neurological or other conditions in a way that is not limited to intelligence quotient scores as the sole determinant of these conditions, and notify the legislature of this action.
     (4) "Eligible person" means a person who has been found by the secretary under RCW 71A.16.040 to be eligible for services.
     (5))) (4) "Habilitative services" means those services ((provided by program personnel)) to assist persons in acquiring and maintaining life skills and to raise their levels of physical, mental, social, and vocational functioning. Habilitative services include education, training for employment, and therapy.
     (((6))) (5) "Health and safety" means meeting essential requirements for providing health care, food, shelter, clothing, personal hygiene, and other care, including habilitation, without which serious physical injury or illness is likely to occur to an applicant requesting services under the provisions of this title.
     (6) "Legal representative" means a parent of a person who is under eighteen years of age, a person's legal guardian, a person's limited guardian when the subject matter is within the scope of the limited guardianship, a person's attorney at law, a person's attorney in fact, or any other person who is authorized by law to act for another person.
     (7) "Natural supports" means the provision of nonpaid assistance, support, or care which is conducted by mutual agreement between a person with a developmental disability and any entity in the community including, but not limited to, family, friends, neighbors, civic groups, or religious organizations.
     (8) "Notice" or "notification" of an action of the secretary means notice in compliance with RCW 71A.10.060.
     (((8))) (9) "Residential habilitation center" means a state-operated facility for persons with developmental disabilities governed by chapter 71A.20 RCW.
     (((9))) (10) "Secretary" means the secretary of social and health services or the secretary's designee.
     (((10))) (11) "Service" or "services" means services provided by state or local government to carry out this title.
     (((11))) (12) "Vacancy" means an opening at a residential habilitation center, which when filled, would not require the center to exceed its ((biannually [biennially])) biennially budgeted capacity.

Sec. 3   RCW 71A.10.030 and 1988 c 176 s 103 are each amended to read as follows:
     (1) The existence of developmental disabilities does not affect the civil rights of the person with the developmental disability except as otherwise provided by law.
     (2) ((The secretary's determination under RCW 71A.16.040 that a person is eligible for services under this title shall not deprive the person of any civil rights or privileges. The secretary's determination alone shall not constitute cause to declare the)) A person ((to be)) is not legally incompetent solely because he or she is receiving services under this title.
     (3) The department shall emphasize to the persons and entities it contracts with the importance of recognizing the rights of a person with a developmental disability referenced in 42 U.S.C. Sec. 15009. The department shall require contractees to post these rights and make them readily available to persons who have a developmental disability.
     (4) This title shall not be construed to deprive the parent or parents of any parental rights with relation to a child residing in a residential habilitation center, except as provided in this title for the orderly operation of such residential habilitation centers.

Sec. 4   RCW 71A.10.050 and 1989 c 175 s 138 are each amended to read as follows:
     (1) An applicant or recipient or former recipient of a developmental disabilities service under this title from the department of social and health services has the right to appeal the following department actions:
     (a) A denial ((of an application for eligibility under RCW 71A.16.040)), reduction, or termination of a service;
     (b) An unreasonable delay in acting on an application ((for eligibility,)) for a service((,)) or for an alternative service under RCW 71A.18.040;
     (c) ((A denial, reduction, or termination of a service;
     (d))) A claim that the person owes a debt to the state for an overpayment;
     (((e))) (d) A disagreement with an action of the secretary under RCW 71A.10.060 or 71A.10.070;
     (((f))) (e) A decision to return a resident of ((an [a])) a habilitation center to the community; and
     (((g))) (f) A decision to change a person's placement from one category of residential services to a different category of residential services.
     The adjudicative proceeding is governed by the Administrative Procedure Act, chapter 34.05 RCW.
     (2) This subsection applies only to an adjudicative proceeding in which the department action appealed is a decision to return a resident of a habilitation center to the community. The resident or his or her representative may appeal on the basis of whether the specific placement decision is in the best interests of the resident. When the resident or his or her representative files an application for an adjudicative proceeding under this section the department has the burden of proving that the specific placement decision is in the best interests of the resident.
     (3) When the department takes any action described in subsection (1) of this section it shall give notice as provided by RCW 71A.10.060. The notice must include a statement advising the recipient of the right to an adjudicative proceeding and the time limits for filing an application for an adjudicative proceeding. Notice of a decision to return a resident of a habilitation center to the community under RCW 71A.20.080 must also include a statement advising the recipient of the right to file a petition for judicial review of an adverse adjudicative order as provided in chapter 34.05 RCW.

Sec. 5   RCW 71A.12.020 and 1988 c 176 s 202 are each amended to read as follows:
     (1) ((To the extent that state, federal, or other funds designated for services to persons with developmental disabilities are available, the secretary shall provide every eligible person with habilitative services suited to the person's needs, regardless of age or degree of developmental disability.
     (2))) The secretary shall provide persons who receive services with the opportunity for integration with ((nonhandicapped and less handicapped persons)) people without disabilities to the greatest extent possible.
     (((3))) (2) The secretary shall establish minimum standards for ((habilitative)) services through the development of a quality assurance system. Consumers, advocates, service providers, appropriate professionals, and local government agencies shall be involved in the development of the standards.

Sec. 6   RCW 71A.12.050 and 1988 c 176 s 205 are each amended to read as follows:
     The secretary may make payments for nonresidential services which exceed the cost of caring for an average individual at home, and which are reasonably necessary for the ((care, treatment, maintenance, support, and training)) health and safety of persons with developmental disabilities, upon application pursuant to RCW 71A.18.050. The secretary shall adopt rules determining the extent and type of care and training for which the department will pay all or a portion of the costs.

Sec. 7   RCW 71A.12.090 and 1988 c 176 s 209 are each amended to read as follows:
     (1) The department shall identify priority populations based upon assessed need.
     (2) The department shall emphasize as a criteria whether the person with a developmental disability is in crisis when determining priority populations and whether the person with a developmental disability could function independently or with family or other natural supports if low cost services, such as employment and family supports, were authorized.
     (3) If a person with a developmental ((disabilities)) disability is the parent of a child who is about to be placed for adoption or foster care prior to termination under chapter 13.34 RCW by the ((secretary)) department, the parent shall be ((eligible)) a high priority to receive departmental services in order to promote the integrity of the family unit.
     (4) When a caregiver who has provided care for several years to a person with a developmental disability has reached an age that the caregiver is considering alternative living arrangements, the person with a developmental disability shall be a high priority for out-of-home placement in order to allow the caregiver to assist with the placement transition prior to the caregiver being unable to care for the person with a developmental disability.
     (5) The department shall provide information and referral to other potential resources that may be able to assist a person with a developmental disability who does not receive services because he or she is not within a priority population.

NEW SECTION.  Sec. 8   A new section is added to chapter 71A.18 RCW to read as follows:
     It is the intent of the legislature that the department establish a single point of referral for persons with developmental disabilities and their families so that they may have a place of entry and continuing contact for services.

NEW SECTION.  Sec. 9   A new section is added to chapter 71A.18 RCW to read as follows:
     The department shall develop a tool for the comprehensive assessment of need for services under this title. The department is not required to meet all needs of a person with a developmental disability. The tool shall identify natural supports and any services that would supplement the natural supports. The assessment tool shall be implemented by January 2004. Development of a computer-based system may require additional time and funding, which should be reported to the legislature by September 2003.

Sec. 10   RCW 71A.18.010 and 1988 c 176 s 501 are each amended to read as follows:
     In order for a person with a developmental disability to access services that the person with a developmental disability has been assessed to need and has been authorized to receive, the secretary ((may)) shall produce and maintain an individual service plan for each ((eligible)) person with a developmental disability that is reviewed annually and revised as needed. An individual service plan is a plan that identifies the needs of a person for services and determines what services will be in the best interests of the person and will meet the person's health and safety needs. The service plan shall be developed collaboratively with the person with a developmental disability and the person with a developmental disability's natural supports, and any other person considered integral to the service planning process. The service plan shall be developed within a reasonable period of time following the department's needs assessment and authorization that the person with a developmental disability receive services.

Sec. 11   RCW 71A.18.020 and 1988 c 176 s 601 are each amended to read as follows:
     The ((secretary may)) department's duty to provide a service to a person ((eligible)) with a developmental disability under this title ((if)) is limited by the funds ((are available. If there is an individual service plan, the secretary shall consider the need for services as provided in that plan)) specifically appropriated to administer this title.
     Limitations in funding can be the basis for denying services to a person with a developmental disability not enrolled in a federal medicaid waiver program, and limitations in funding can be the basis for denying nonwaiver services to a person with a developmental disability enrolled in a federal medicaid waiver program.

NEW SECTION.  Sec. 12   A new section is added to chapter 71A.18 RCW to read as follows:
     (1) An applicant enrolled in a medicaid waiver or receiving waiver services must be ICF/MR eligible.
     (2) Accessing medicaid for an applicant by enrolling an applicant in a medicaid waiver is prohibited, unless the applicant is assessed to need waiver services and is a person assessed to meet the criteria of a priority population.
     (3) The department shall evaluate medicaid cost-sharing options for applicants enrolled in a medicaid waiver and report to the legislature regarding its findings by September 2003.
     (4) The department shall evaluate available cost-effective options for covering an applicant assessed to need medical coverage and report to the legislature regarding its findings by September 2003.

Sec. 13   RCW 71A.18.030 and 1988 c 176 s 602 are each amended to read as follows:
     ((An eligible)) A person with a developmental disability or the ((person's)) person with a developmental disability's legal representative may reject an authorized service. Rejection of an authorized service shall not affect the person's eligibility for services and shall not eliminate the person from consideration for other services or for the same service at a different time or under different circumstances.

Sec. 14   RCW 71A.18.050 and 1988 c 176 s 604 are each amended to read as follows:
     (1) When considering the discontinuance of a service that is being provided to a person, the secretary shall consult as required in RCW 71A.10.070.
     (2) ((The discontinuance of a service under this section does not affect the person's eligibility for services.)) Other services may be provided or the same service may be restored when it is again available or when it is again needed.
     (3) Except when the service is discontinued at the request of the person receiving the service or that person's legal representative, the secretary shall give notice as required in RCW 71A.10.060.

NEW SECTION.  Sec. 15   A new section is added to chapter 71A.18 RCW to read as follows:
     The department shall coordinate with the office of the superintendent of public instruction to access funding to the fullest extent possible so that a person with a disability can achieve the maximum level of self-sufficiency, including employability. The department shall coordinate with all other state agencies to achieve early intervention that may prevent the need for more complex and costly services later in the person's development.

NEW SECTION.  Sec. 16   A new section is added to chapter 71A.10 RCW to read as follows:
     The department is authorized to adopt rules to implement this act. This authority includes, but is not limited to, adoption of rules that clarify the term developmental disability, formulate implementation provisions, and set criteria for determination and redetermination of developmental disability, priority populations, and assessment.

Sec. 17   RCW 35.82.285 and 1991 c 167 s 3 are each amended to read as follows:
     Housing authorities created under this chapter may establish and operate group homes or halfway houses to serve juveniles released from state juvenile or correctional institutions, or to serve the developmentally disabled as defined in RCW 71A.10.020(((2))). Authorities may contract for the operation of facilities so established, with qualified nonprofit organizations as agent of the authority. Authorities may provide support or supportive services in facilities serving juveniles, the developmentally disabled or other persons under a disability, and the frail elderly, whether or not they are operated by the authority.
     Action under this section shall be taken by the authority only after a public hearing as provided by chapter 42.30 RCW. In exercising this power the authority shall not be empowered to acquire property by eminent domain, and the facilities established shall comply with all zoning, building, fire, and health regulations and procedures applicable in the locality.

Sec. 18   RCW 71A.20.010 and 1988 c 176 s 701 are each amended to read as follows:
     This chapter covers the operation of residential habilitation centers. The selection of persons to be served at the centers is governed by ((chapters 71A.16 and 71A.18 RCW)) this title. The purposes of this chapter are: To provide for those children and adults who are exceptional in their needs for care, treatment, and education by reason of developmental disabilities, residential care designed to develop their individual capacities to their optimum; to provide for admittance, withdrawal and discharge from state residential habilitation centers upon application; and to insure a comprehensive program for the education, guidance, care, treatment, and rehabilitation of all persons admitted to residential habilitation centers.

Sec. 19   RCW 84.36.042 and 1998 c 202 s 1 are each amended to read as follows:
     (1) All real and personal property owned or leased by a nonprofit organization, corporation, or association to provide housing for ((eligible)) persons with developmental disabilities is exempt from property taxation.
     (a) To qualify for this exemption, the nonprofit organization, corporation, or association must be qualified for exemption under section 501(c)(3) of the internal revenue code of 1986 (26 U.S.C. Sec. 501(c)(3)). It must also have been organized for charitable purposes to create and preserve long-term affordable housing for low-income developmentally disabled persons.
     (b) The housing must be occupied by ((eligible)) persons with a developmental disability who have a low income.
     (2) As used in this section:
     (a) "Developmental disability" means the same as defined in RCW 71A.10.020;
     (b) (("Eligible person" means the same as defined in RCW 71A.10.020; and
     (c))) "Low income" means the adjusted gross income of the resident is at eighty percent or less of the median income adjusted for family size, as most recently determined by the federal department of housing and urban development for the county in which the housing is located and in effect as of January 1st of the assessment year for which the exemption is sought. "Adjusted gross income" is as defined in the federal internal revenue code of 1986, as it exists on June 11, 1998, or such subsequent date as the director may provide by rule consistent with the purpose of this section.
     (3) To be exempt under this section, the property must be used exclusively for the purposes for which the exemption is granted, except as provided in RCW 84.36.805.
     (4) If the real or personal property for which exemption is sought is leased, the benefit of the exemption must inure to the nonprofit organization, corporation, or association leasing the property to provide the housing for developmentally disabled persons.

NEW SECTION.  Sec. 20   A new section is added to chapter 71A.10 RCW to read as follows:
     This act is not intended to, and shall not be construed to, create any right of action on the part of any individual beyond those in existence under any common law or other statutory provisions.

NEW SECTION.  Sec. 21   The following acts or parts of acts are each repealed:
     (1) RCW 71A.10.010 (Legislative finding -- Intent -- 1988 c 176) and 1988 c 176 s 1;
     (2) RCW 71A.10.011 (Intent -- 1995 c 383) and 1995 c 383 s 1;
     (3) RCW 71A.10.800 (Application of Title 71A RCW to matters pending as of June 9, 1988) and 1988 c 176 s 1008;
     (4) RCW 71A.10.805 (Headings in Title 71A RCW not part of law) and 1988 c 176 s 1002;
     (5) RCW 71A.10.900 (Severability -- 1988 c 176) and 1988 c 176 s 1003;
     (6) RCW 71A.10.901 (Saving -- 1988 c 176) and 1988 c 176 s 1004;
     (7) RCW 71A.10.902 (Continuation of existing law -- 1988 c 176) and 1988 c 176 s 1001;
     (8) RCW 71A.16.020 (Eligibility for services -- Rules) and 1988 c 176 s 402;
     (9) RCW 71A.16.030 (Outreach program--Determination of eligibility for services -- Application) and 1998 c 216 s 4 & 1988 c 176 s 403;
     (10) RCW 71A.16.040 (Determination of eligibility -- Notice -- Rules for redetermination) and 1989 c 175 s 141 & 1988 c 176 s 404; and
     (11) RCW 71A.16.050 (Determination of eligibility -- Effect--Determination of appropriate services) and 1988 c 176 s 405.

NEW SECTION.  Sec. 22   RCW 71A.16.010 (Referral for services--Admittance to residential habilitation centers -- Expiration of subsections) and 1998 c 216 s 3 & 1988 c 176 s 401 are each repealed, effective June 30, 2003.

NEW SECTION.  Sec. 23   If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected.

NEW SECTION.  Sec. 24   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.