WSR 97-11-044

PROPOSED RULES

DEPARTMENT OF

SOCIAL AND HEALTH SERVICES

(Institutions)

[Filed May 16, 1997, 10:03 a.m.]

Original Notice.

Preproposal statement of inquiry was filed as WSR 95-23-057.

Title of Rule: Sexually violent predator escorted leaves.

Purpose: Chapter 71.09 RCW was amended to authorize the Department of Social and Health Services to grant escorted leaves under certain circumstances.

Statutory Authority for Adoption: RCW 71.09.230.

Statute Being Implemented: RCW 71.09.200, [71.09.]210, [71.09.]110, and [71.09.]230.

Summary: Provides implementation rules for escorted leaves of persons detained or committed under chapter 71.09 RCW; outlines the process for the person or the person's immediate family to reimburse the state for the costs of the leave of absence.

Name of Agency Personnel Responsible for Drafting: David Weston, Olympia, (360) 902-7846; Implementation and Enforcement: Mark Seling, Acting Superintendent, Monroe, (360) 794-2240.

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

Rule is not necessitated by federal law, federal or state court decision.

Explanation of Rule, its Purpose, and Anticipated Effects: Provides implementation rules for escorted leaves of persons detained or committed under chapter 71.09 RCW; outlines the process for the person or the person's immediate family to reimburse the state for the costs of the leave of absence.

Proposal Changes the Following Existing Rules: Rules previously did not contain any reference to escorted leaves.

No small business economic impact statement has been prepared under chapter 19.85 RCW. This rule does not have any impact on small businesses.

Section 201, chapter 403, Laws of 1995, does not apply to this rule adoption. This section (RCW 34.05.328) does not apply to the Department of Social and Health Services.

Hearing Location: Lacey Government Center (behind Tokyo Bento restaurant), 1009 College Street S.E., Room 104-A, Lacey, WA 98503, on June 24, 1997, at 10:00 a.m.

Assistance for Persons with Disabilities: Contact Leslie Baldwin by June 17, 1997, TTY (360) 902-8324, or (360) 902-7540.

Submit Written Comments to: Leslie Baldwin, Rules Coordinator, P.O. Box 45850, Olympia, WA 98504-5850, FAX (360) 902-8292, by June 24, 1997.

Date of Intended Adoption: No sooner than June 25, 1997.

May 15, 1997

Merry A. Kogut, Manager

Rules and Policies Assistance Unit

SEXUAL PREDATOR PROGRAM--SPECIAL COMMITMENT ((PROCESS))--ESCORTED LEAVE

SPECIAL COMMITMENT PROCESS

AMENDATORY SECTION (Amending Order 3054, filed 8/21/90, effective 9/21/90 WAC 275-155-005 Special commitment of sexually violent predators--Legal basis. (1) ((Laws of 1990,)) Chapt(3, section 1006)) 71.09 RCW authorizes the department to develop a sexual predator program (SPP) for a person the court determines is a sexually violent predator.

(2) Beginning July 1, 1990, the department's SPP shall provide:

(a) Evaluation of a person court-ordered to the SPP ((for determining)) to determine if the person meets the definition of a sexually violent predator under this chapter; and

(b) Control, care, and treatment services to a person court-committed as a sexually violent predator.

[Statutory Authority: 1990 c 3. 90-17-120 (Order 3054), 275-155-005, filed 8/21/90, effective 9/21/90.]

AMENDATORY SECTION (Amending Order 3054, filed 8/21/90, effective 9/21/90 WAC 275-155-010 Definitions. Unless the context clearly requires otherwise, the definitions in this section apply throughout this chapter.

(1) "Appropriate facility" means a facility the department uses for evaluating and determining if a person meets the definition of a sexually violent predator as defined in this section.

(2) "Care" means a service the department provides during a person's commitment to the SPP to sustain adequate health, shelter, and physical sustenance.

(3) "Control" means a restraint, restriction, or confinement the department applies protecting a person from endangering self, others, or property during a commitment under this chapter.

(4) "Department" means the department of social and health services.

(5) "Escorted leave" means a leave of absence from a facility housing persons detained or committed under chapter 71.09 RCW under the continuous supervision of an escort.

(6) "Evaluation" means an examination, report, or recommendation a professionally qualified person makes determining if a person meets or continues to meet the definition of a sexually violent predator as defined in this section.

(((6))) (7) "Immediate family" includes a resident's parents, stepparents, parent surrogates, legal guardians, grandparents, spouse, brothers, sisters, half or stepbrothers or sisters, children, stepchildren, and other dependents.

(8) "Indigent" means a resident who has not been credited with twenty-five dollars or more total from any source for deposit to the resident's trust fund account during the thirty days preceding the request for an escorted leave and has less than a twenty-five dollar balance in his/her trust fund account on the day the escorted leave is requested, and together with his/her requesting immediate family member affirm in writing that they cannot afford to pay the costs of the escorted leave without undue hardship. A declaration of indigency shall be signed by the resident and the resident's requesting immediate family member on forms provided by the department.

(9) "Individual treatment plan (ITP)" means an outline the SPP staff persons develop detailing how control, care, and treatment services are provided to a SPP-committed person.

(((7) "Predatory" means acts a person directs toward strangers or individuals with whom a relationship has been established or promoted for the primary purpose of victimization.

(8))) (10) "Mental abnormality" means a congenital or acquired condition affecting a person's emotional or volitional capacity, including personality disorders, predisposing the person to commit criminal acts of sexual violence placing other persons in danger.

(((9))) (11) "Predatory" means acts a person directs toward strangers or individuals with whom a relationship has been established or promoted for the primary purpose of victimization.

(12) "Professionally qualified person" includes:

(a) "Mental health counselor" means a person certified as a mental health counselor under chapter 18.19 RCW;

(b) "Psychiatric nurse" means a person licensed as a registered nurse under chapter 18.88 RCW and having two or more years supervised clinical experience;

(c) "Psychiatrist" means a person licensed as a physician under chapters 18.71 and 18.57 RCW. In addition, the person shall:

(i) Have completed three years of graduate training in a psychiatry program approved by the American Medical Association or the American Osteopathic Association; and

(ii) Be certified, or eligible to be certified, by the American Board of Psychiatry and Neurology;

(d) "Psychologist" means a person licensed as a doctor of psychology under chapter 18.83 RCW; and

(e) "Social worker" means a person certified as a social worker under chapter 18.19 RCW.

(((10)) (13) "Resident" means a person detained or committed pursuant to chapter 71.09 RCW.

(14) "Secretary" means the secretary of the department of social and health services.

(15) "Secure facility" means a department-operated facility, not located on the grounds of a state mental facility or residential habilitation center, with the purpose of confining and treating a person committed to the SPP.

(((11))) (16) "Sexual predator program (SPP)" means a department-administered and operated program established for:

(a) A court-ordered person's evaluation; or

(b) Control, care, and treatment of a court-committed person defined as a sexually violent predator under this chapter.

(((12))) (17) "Sexually violent offense" means an act defined under ((Laws of 1990,)) Chapter ((3, section 1002)) 71.09 RCW and for which a person is charged or convicted on, before, or after July 1, 1990.

(((13))) (18) "Sexually violent predator" means a person defined under ((Laws of 1990,)) Chapter ((3, section 1002)) 71.09 RCW who has been convicted 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.

(19) "Superintendent" means the person delegated by the secretary of the department to be responsible for the facility housing persons detailed or committed under chapter 71.09 RCW.

[Statutory Authority: 1990 c 3. 90-17-120 (Order 3054), 275-155-010, filed 8/21/90, effective 9/21/90.]

Reviser's note: The typographical error in the above section occurred in the copy filed by the agency and appears in the Register pursuant to the requirements of RCW 34.08.040.

ESCORTED LEAVE

NEW SECTION

WAC 275-155-070 Escorted leave--Purpose. The purpose of WAC 275-155-070 through 388-155-140 is:

(1) To set forth the conditions under which residents will be granted leaves of absence;

(2) To provide for safeguards to prevent escape, the obtaining of contraband, and the commission of new crimes, while on leaves of absence; and

(3) To outline the process for the reimbursement of the state by the resident and the resident's family for the costs of the leave of absence.

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NEW SECTION

WAC 275-155-080 Reasons allowed. An escorted leave of absence may be granted by the superintendent, or designee, subject to the approval of the secretary, to residents to:

(1) Go to the bedside of a member of the resident's immediate family as defined in WAC 275-155-010, who is seriously ill;

(2) Attend the funeral of a member of the resident's immediate family as defined in WAC 275-155-010; and

(3) Receive necessary medical or dental care which is not available in the institution.

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NEW SECTION

WAC 275-155-090 Conditions. (1) An escorted leave shall be authorized only for trips within the boundaries of the state of Washington.

(2) The duration of an escorted leave to the bedside of a seriously ill member of the resident's immediate family or attendance at a funeral shall not exceed forty-eight hours unless otherwise approved by the superintendent, or designee.

(3) Other than when housed in a city or county jail or state institution the resident shall be in the visual or auditory contact of an approved escort at all times.

(4) The resident shall be housed in a city or county jail or state institution at all times when not in transit or actually engaged in the activity for which the escorted leave was granted.

(5) Unless indigent, the resident and immediate family member shall, in writing, make arrangements to reimburse the state for the cost of the leave prior to the date of the leave.

(6) The superintendent, or designee, shall notify county and city law enforcement agencies with jurisdiction in the area of the resident's destination before allowing any escorted leave of absence.

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NEW SECTION

WAC 275-155-100 Application requests and approval for escorted leave. The superintendent, or designee, shall establish a policy and procedures governing the method of handling the requests by individual residents. The superintendent, or designee, shall evaluate each leave request and, in writing, approve or deny the request within forty-eight hours of receiving the request based on:

(1) The nature and length of the escorted leave;

(2) The community risk associated with granting the request based on the resident's history of security or escape risk;

(3) The resident's overall history of stability, cooperative or disruptive behavior, and violence or other acting out behavior;

(4) The resident's degree of trustworthiness as demonstrated by his/her performance in unit assignments, security level, and general cooperativeness with facility staff;

(5) The resident's family's level of involvement and commitment to the escorted leave planning process;

(6) The rehabilitative or treatment benefits which could be gained by the resident; and

(7) Any other information as may be deemed relevant.

The resident's, and family's, ability to reimburse the state for the cost of the escorted leave shall not be a determining factor in approving or denying a request.

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NEW SECTION

WAC 275-155-110 Escort procedures. (1) Only persons approved by the superintendent, or designee, will be authorized to serve as escorts. All escorts must be employees of either the department of social and health services or the department of corrections and must have attained permanent employee status. At least one of the escorts must be experienced in the escort procedures.

(2) The superintendent, or designee, shall determine the use and type of restraints necessary for each escorted leave on an individual basis.

(3) Escorted leaves supervised by department of corrections staff shall be done in accordance with established department of corrections procedures. Correctional officers may wear civilian clothing when escorting a resident to a bedside visit or a funeral.

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NEW SECTION

WAC 275-155-120 Expenses. (1) Staff assigned escort duties shall be authorized per diem reimbursement for meals, lodging, and transportation at the rate established by the state travel policy.

(2) Staff assigned escort duties shall receive appropriate compensation at regular salary or overtime for all hours spent in actual escort of the resident, but not including hours spent sleeping or not engaged in direct supervision of the resident. The salary shall be paid at the appropriate straight time and overtime rates as provided in the merit system rules.

(3) Cost of housing the resident in a city or county jail shall be charged to the resident in accordance with WAC 275-155-130.

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NEW SECTION

WAC 275-155-130 Expenses--Paid by resident. (1) The expenses of the escorted leave as enumerated in WAC 275-155-120 shall be reimbursed by the resident or his/her immediate family member unless the superintendent, or designee, has authorized payment at state expense in accordance with WAC 275-155-140.

(2) Payments by the resident, or the resident's immediate family member, shall be made to the facility's business office and applied to the appropriate fund as defined by law, applicable provisions of the Washington Administrative Code, or department policy.

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NEW SECTION

WAC 275-155-140 Expenses--Paid by department. The expenses of the escorted leave shall be absorbed by the state if:

(1) The resident and his/her immediate family are indigent as defined in WAC 275-155-010; or

(2) The expenses were incurred to secure medical care.