WSR 02-14-064

EMERGENCY RULES

DEPARTMENT OF

SOCIAL AND HEALTH SERVICES
(Health and Rehabilitative Services Division)

[ Filed June 27, 2002, 3:18 p.m. ]

Date of Adoption: June 26, 2002.

Purpose: The Division of Developmental Disabilities has been directed by the 2002 Washington state legislature to begin paying an income supplemental, called state supplementary payment (SSP). Implementation of this directive requires amendment of rules in chapters 388-820, 388-825 and 388-850 WAC, as well as adoption of new WAC 388-825-500 through 388-825-580, Division of Developmental Disabilities state supplemental payment.

Citation of Existing Rules Affected by this Order: Amending WAC 388-850-035, 388-820-020, 388-820-060, 388-820-120, 388-825-020, 388-825-055, 388-825-120, 388-825-180, 388-825-252, and 388-825-254.

Statutory Authority for Adoption: RCW 71A.12.030, 71A.10.020.

Other Authority: 2001-03 Supplemental Budget ESSB 6387 (chapter 371, Laws of 2002).

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: The state legislature in adopting ESSB 6387 (chapter 371, Laws of 2002), has directed the Division of Developmental Disabilities to begin paying an income supplement, called state supplemental payment. In its published "Final Budget - Statewide Agency Detail" for ESSB 6387, the legislature also clearly stated its intent that "Beginning July 2002, state supplemental payments will no longer be provided automatically to all persons receiving a federal SSI benefit. SSI recipients will continue to receive their federal benefits and their federally provided annual cost of living increases each January. Some recipients who are dependent on larger state supplements will be provided a transitional state supplemental payment. The remaining amount of state supplemental payments required by federal rules will be used to support low . . . income families who are struggling to continue to care for children and other relatives with developmental disabilities." Emergency adoption of these rules is necessary to implement ESSB 6387 and the legislature's intent.

Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 17, Amended 10, Repealed 0.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 17, Amended 10, Repealed 0.
Effective Date of Rule: Immediately.

June 26, 2002

Brian H. Lindgren, Manager

Rules and Policies Assistance Unit

3137.2
AMENDATORY SECTION(Amending WSR 99-23-021, filed 11/9/99, effective 12/10/99)

WAC 388-825-020   Definitions.   "Abandonment" means action or inaction by a person or entity with a duty to care for a vulnerable adult that leaves the vulnerable person without the means or ability to obtain necessary food, clothing, shelter, or health care.

"Adolescent" means a DDD eligible child age thirteen through seventeen years.

"Attendant care" means provision of physical and/or behavioral support to protect the safety and well being of a client.

"Best interest" includes, but is not limited to, client-centered benefits to:

(1) Prevent regression or loss of skills already acquired;

(2) Achieve or maintain economic self-support;

(3) Achieve or maintain self-sufficiency;

(4) Prevent or remedy neglect, abuse, or exploitation of individuals unable to protect their own interest;

(5) Preserve or reunite families; and

(6) Provide the least-restrictive setting that will meet the person's medical and personal needs.

"Client or person" means a person the division determines under RCW 71A.16.040 and WAC 388-825-030 eligible for division-funded services.

"Community support services" means one or more of the services listed in RCW 71A.12.040 including, but not limited to the following services: Architectural, case management, early childhood intervention, employment, counseling, family support, respite care, information and referral, health services and equipment, therapy services, and residential support.

"Department" means the department of social and health services of the state of Washington.

"Director" means the director of the division of developmental disabilities.

"Division or DDD" means the division of developmental disabilities of the department of social and health services.

"Emergency" means a sudden, unexpected occurrence demanding immediate action.

"Exemption" means the department's approval of a written request for an exception to a rule in this chapter.

"Family" means individuals, of any age, living together in the same household and related by blood, marriage, adoption or as a result of sharing legal custody of a minor child.

"Family resources coordinator" means the person who is:

(1) Recognized by the IDEA Part C lead agency; and

(2) Responsible for:

(a) Providing family resources coordination;

(b) Coordinating services across agencies; and

(c) Serving as a single contact to help families receiving assistance and services for their eligible children who are under three years of age.

"ICF/MR" means a facility certified as an intermediate care facility for the mentally retarded by Title XIX to provide services to the mentally retarded or persons with related conditions.

"ICF/MR Eligible" for admission to an ICF/MR means a person is determined by DDD as needing active treatment as defined in CFR 483.440. Active treatment requires:

(1) Twenty-four hour supervision; and

(2) Continuous training and physical assistance in order to function on a daily basis due to deficits in the following areas: Toilet training, personal hygiene, dental hygiene, self-feeding, bathing, dressing, grooming, and communication.

"Individual" means a person applying for services from the division.

"Individual alternative living" means provision of community-based individualized client training, assistance and/or ongoing support to enable a client to live as independently as possible with minimal services.

"Individual supportive living service" (also known as companion home) means provision of twenty-four hour residential support in a nonlicensed home for one adult person with developmental disabilities.

"Intelligence quotient score" means a full scale score on the Wechsler, or the intelligence quotient score on the Stanford-Binet or the Leiter International Performance Scale.

"Medicaid personal care" is the provision of medically necessary personal care tasks as defined in chapter 388-15 WAC.

"Nonresidential programs" means programs including, but not limited to, county-funded habilitation services.

"Nursing facility eligible" means a person is assessed by DDD as meeting the requirements for admission to a licensed nursing home as defined in WAC 388-97-235. The person must require twenty-four hour care provided by or under the supervision of a licensed nurse.

"Other resources" means resources that may be available to the client, including but not limited to:

(1) Private insurance;

(2) Medicaid;

(3) Indian health care;

(4) Public school services through the office of the superintendent of public instruction; and

(5) Services through the department of health.

"Part C" means early intervention for children from birth through thirty-five months of age as defined in the Individuals with Disabilities Education Act (IDEA), Part C and 34 CFR, Part 303 and Washington's federally approved grant.

"Residential habilitation center" or "RHC" means a state-operated facility certified to provide ICF/MR and/or nursing facility level of care for persons with developmental disabilities.

"RHC capacity" means the maximum number of eligible persons that can reside in a residential habilitation center without exceeding its 1997 legislated budgeted capacity.

"Residential programs" means provision of support for persons in community living situations. Residential programs include DDD certified community residential services and support, both facility-based such as, licensed group homes, and non-facility based, i.e., supportive living, intensive tenant support, and state-operated living alternatives (SOLA). Other residential programs include individual alternative living, intensive individual supportive living services, adult family homes, adult residential care services, nursing homes, and children's foster homes.

"Respite care" means temporary residential services provided to a person and/or the person's family on an emergency or planned basis.

"Secretary" means the secretary of the department of social and health services or the secretary's designee.

"State supplemental payment (SSP)" is the state paid cash assistance program for certain DDD eligible SSI clients.

"Vacancy" means an opening at a RHC, which when filled, would not require the RHC to exceed its 1997 biannually budgeted capacity, minus:

(1) Twenty-six beds designated for respite care use; and

(2) Any downsizing related to negotiations with the Department of Justice regarding community placements.

"Vulnerable adult" means a person who has a developmental disability as defined under RCW 71A.10.020.

[Statutory Authority: RCW 71A.12.030 and 71A.12.040. 99-23-021, amended and recodified as 388-825-020, filed 11/9/99, effective 12/10/99. Statutory Authority: RCW 71A.12.030. 99-04-071, 275-27-020, filed 2/1/99, effective 3/4/99. Statutory Authority: RCW 74.12A.030 and 71A.16.030. 98-20-044, 275-27-020, filed 9/30/98, effective 10/7/98. Statutory Authority: RCW 71A.14.030 and 71A.16.020. 92-09-115 (Order 3373), 275-27-020, filed 4/21/92, effective 5/22/92. Statutory Authority: RCW 71A.16.020. 91-17-005 (Order 3230), 275-27-020, filed 8/9/91, effective 9/9/91. Statutory Authority: RCW 71.20.070. 89-06-049 (Order 2767), 275-27-020, filed 2/28/89; 84-15-058 (Order 2124), 275-27-020, filed 7/18/84. Statutory Authority: RCW 72.01.090, 72.33.040, 72.33.125 and 72.33.165. 78-04-033 (Order 1280), 275-27-020, filed 3/16/78; Order 1143, 275-27-020, filed 8/11/76.]


AMENDATORY SECTION(Amending WSR 98-20-044 [99-19-104], filed 9/20/99, effective 9/20/99)

WAC 388-825-055   Authorization of services.   (1) The division's field services section shall be responsible for authorizing state paid services agreed to by the person/family including, but not limited to:

(a) Placement to and from residential habilitation centers;

(b) Community residential services;

(c) Family support services; and

(d) Nonresidential programs.

(2) The division's authorization of services shall be based on the ((availability of)) 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. The availability of SSP funding makes the client ineligible for state funding for the same service.

(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.116.010 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:

(a) Service is included in a department contract; and

(b) Person is at least twenty-one years of age and graduated from school during their twenty-first year; or

(c) Person is twenty-two years of age or older; or

(d) Person 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.

[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.]

Reviser's note: The bracketed material preceding the section above was supplied by the code reviser's office.
AMENDATORY SECTION(Amending Order 3230 [WSR 99-19-104], filed 9/20/99, effective 9/20/99)

WAC 388-825-120   Adjudicative proceeding.   (1) A client, former client, or applicant acting on the applicant's own behalf or through an authorized representative has the right to an adjudicative proceeding to contest the following department actions:

(a) Denial or termination of eligibility set forth in WAC ((275-27-030)) 388-825-030;

(b) Development or modification of the individual service plan set forth in WAC ((275-27-060)) 388-825-050;

(c) Authorization, denial, reduction, or termination of services ((set forth in WAC 275-27-230));

(d) Admission or readmission to, or discharge from, a residential habilitation center;

(e) A claim the client, former client, or applicant owes an overpayment debt;

(f) A decision of the secretary under RCW 71A.10.060 or 71A.10.070;

(g) A decision to change a client's placement from one category of residential services to a different category of residential services.

(2) Adjudicative proceedings are governed by the Administrative Procedure Act (chapter 34.05 RCW), RCW 71A.10.050, the rules in this chapter, and by chapter 388-08 WAC. If any provision in this chapter conflicts with chapter 388-08 WAC, the provision in this chapter shall govern.

(3) The applicant's application for an adjudicative proceeding shall be in writing and filed with the DSHS office of appeals within twenty-eight days of receipt of the decision the appellant wishes to contest.

(4) The department shall not implement the following actions while an adjudicative proceeding is pending:

(a) Termination of eligibility;

(b) Reduction or termination of service, except when the action to reduce or terminate the service is based on the availability of funding and/or service; or

(c) Removal or transfer of a client from a service, except when a condition in subsection (5)(f) of this section is present.

(5) The department shall implement the following actions while an adjudicative proceeding is pending:

(a) Denial of eligibility;

(b) Development or modification of an individual service plan;

(c) Denial of service;

(d) Reduction or termination of service when the action to reduce or terminate the service is based on the availability of funding or service;

(e) After notification of an administrative law judge's (or review judge) ruling that the appellant has caused an unreasonable delay in the proceedings; or

(f) Removal or transfer of a client from a service when:

(i) An immediate threat to the client's life or health is present;

(ii) Service termination or transfer for a specific group of clients in order to meet the legislative intent of and comply with sections 205 and 207, chapter 371, Laws of 2002.

(iii) The client's service provider is no longer able to provide services due to:

(A) Termination of the provider's contract;

(B) Decertification of the provider;

(C) Nonrenewal of provider's contract;

(D) Revocation of provider's license; or

(E) Emergency license suspension.

(iii) The client, the parent when the client is a minor, or the guardian when the client is an adult, approves the decision.

(6) When the appellant files an application to contest a decision to return a resident of a state residential school to the community, the procedures specified in RCW 71A.10.050(2) shall govern the proceeding. These procedures include:

(a) A placement decision shall not be implemented during any period during which an appeal can be taken or while an appeal is pending and undecided unless the:

(i) Client's or the client's representative gives written consent; or

(ii) Administrative law judge (or review judge) after notice to the parties rules the appellant has caused an unreasonable delay in the proceedings.

(b) The burden of proof is on the department; and

(c) The burden of proof is whether the specific placement proposed by the department is in the best interests of the resident.

(7) The initial order shall be made within sixty days of the department's receipt of the application for an adjudicative proceeding. When a party files a petition for administrative review, the review order shall be made within sixty days of the department's receipt of the petition. The decision-rendering time is extended by as many days as the proceeding is continued on motion by, or with the assent of, the appellant.

[99-19-104, recodified as 388-825-120, filed 9/20/99, effective 9/20/99. Statutory Authority: RCW 71A.16.020. 91-17-005 (Order 3230), 275-27-500, filed 8/9/91, effective 9/9/91. Statutory Authority: RCW 34.05.220 (1)(a) and 71.12.030 [71A.12.030]. 90-04-074 (Order 2997), 275-27-500, filed 2/5/90, effective 3/1/90. Statutory Authority: RCW 71.20.070. 86-18-049 (Order 2418), 275-27-500, filed 8/29/86. Statutory Authority: RCW 72.33.161. 84-15-038 (Order 2122), 275-27-500, filed 7/13/84. Statutory Authority: RCW 72.01.090, 72.33.040, 72.33.125 and 72.33.165. 78-04-033 (Order 1280), 275-27-500, filed 3/16/78; Order 1143, 275-27-500, filed 8/11/76.]

Reviser's note: The bracketed material preceding the section above was supplied by the code reviser's office.

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.
AMENDATORY SECTION(Amending Order 2086 [WSR 99-19-104], filed 9/20/99, effective 9/20/99)

WAC 388-825-180   Eligible persons.   (1) To be eligible to apply for community alternatives program (CAP) services, the individual must:

(a) Meet the criteria for the division of developmental disabilities (DDD) eligibility.

(b) Meet the criteria for disability as established in the Social Security Act.

(c) Have an income of less than three hundred percent of the federal Supplemental Security Income (SSI) benefit amount.

(d) Need an IMR level of care as determined by a DDD nursing care consultant.

(e) Does not have SSP funding for the needed habilitation services and training.

(i) Require twenty-four hour care and require services that cannot be provided by a family member, and

(ii) Have a documented need for habilitation services and training.

(2) Participation in CAP is by choice of the otherwise IMR-eligible person.

[99-19-104, recodified as 388-825-180, filed 9/20/99, effective 9/20/99. Statutory Authority: RCW 71.20.020. 84-07-018 (Order 2086), 275-27-810, filed 3/14/84.]

Reviser's note: The bracketed material preceding the section above was supplied by the code reviser's office.
AMENDATORY SECTION(Amending WSR 99-04-071 [99-19-104], filed 9/20/99, effective 9/20/99)

WAC 388-825-205   Who is eligible to participate in the family support opportunity program?   (1) All individuals living with their families determined to be developmentally disabled according to WAC ((275-27-026)) 388-825-030 are eligible to participate in the program if their family requires assistance in meeting their needs. However, the program will fund or provide support services only as funding is available.

(2) Persons currently receiving services under WAC ((275-27-220 and 275-27-223)) 388-825-252, Family support services, may volunteer to participate in the program.

(3) Families will receive program services based on the date of application.

(4) Availability of SSP (state supplemental payment) makes the client/family ineligible for state funding for the same service.

[99-19-104, recodified as 388-825-205, filed 9/20/99, effective 9/20/99. Statutory Authority: RCW 71A.12.030. 99-04-071, 275-27-185, filed 2/1/99, effective 3/4/99.]

Reviser's note: The bracketed material preceding the section above was supplied by the code reviser's office.
AMENDATORY SECTION(Amending WSR 97-13-051 [99-19-104], filed 9/20/99, effective 9/20/99)

WAC 388-825-252   Family support services.   (1) The purpose of the family support program is to:

(a) Reduce or eliminate the need for out-of-home residential placement of a client where the in-home placement is in the client's best interest;

(b) Allow a client to live in the most independent setting possible; and

(c) Have access to services best suited to a client's needs.

(2) The department's family support services shall include, the following services:

(a) Respite care, including the use of community activities which provide respite;

(b) Attendant care;

(c) Nursing services provided by a registered nurse or licensed practical nurse, that cannot be provided by an unlicensed caregiver, including but not limited to, ventilation, catheterization, insulin injections, etc., when not covered by another resource;

(d) Therapeutic services, provided these therapeutic services are not covered by another resource such as medicaid, private insurance, public schools, or child development services funding, including:

(i) Physical therapy;

(ii) Occupational therapy;

(iii) Behavior management therapy; and

(iv) Communication therapy; or

(v) Counseling for the client relating to a disability.

(3) Receiving family support services is based on funding availability:

(a) Funding for state paid services must be available in the state operating budget; or

(b) SSP funding must be available to the client/family.

(4) The following rules, subsections (5) through (9), apply only to family support services authorized by the department and do not govern services purchased by the family with SSP funding (state supplemental payment).

(5) Up to nine hundred dollars of the service need level amount in WAC 388-825-254 may be used during a one year period for flexible use as follows. The requested service must be necessary as a result of the disability of the client.

(a) Training and supports including parenting classes and disability related support groups;

(b) Specialized equipment and supplies including the purchase, rental, loan or refurbishment of specialized equipment or adaptive equipment not covered by another resource including Medicaid. Mobility devices such as walkers and wheelchairs are included, as well as communication devices and medical supplies such as diapers for those more than three years of age;

(c) Environmental modification including home repairs for damages, and modifications to the home needed because of the disability of the client;

(d) Medical/dental services not covered by any other resource. This may include the payment of insurance premiums and deductibles and is limited to the premiums and deductibles of the client;

(e) Special formulas or specially prepared foods needed because of the disability of the client;

(f) Parent/family counseling dealing with a diagnosis, grief and loss issues, genetic counseling and behavior management;

(g) Specialized clothing adapted for a physical disability, excessive wear clothing, or specialized footwear;

(h) Specialized utility costs including extraordinary supplemental utility costs related to the client's disability or medical condition;

(i) Transportation costs for gas or tickets (ferry fare, transit cost) for a client to get to essential services and appointments, if another resource is not available;

(j) Other services approved by the DDD regional administrator or designee that will replace or reduce ongoing departmental expenditures and will reduce the risk of out-of-home placement. Exemption requests under this section are not subject to appeal.

(((4))) (6) Recommendations will be made to the regional administrator by a review committee. The regional administrator will approve or disapprove the request and will communicate reasons for denial to the committee.

(((5))) (7) Payment for services specified in subsection (3), except (3)(a) and (h), shall cover only the portion of cost attributable to the client.

(((6))) (8) Requests must be received by DDD no later than midway through the service authorization period unless circumstances exist justifying an emergency.

(((7))) (9) A plan shall be developed jointly by the family and the department for each service authorization period. The department may choose whether to contract directly with the vendor, to authorize purchase by another agency, or may reimburse the parent of the client.

(((8))) (10) Emergency services. Emergency funds may be requested for use in response to a single incident or situation or short term crisis such as care giver hospitalization, absence, or incapacity. The request shall include anticipated resolution of the situation. Funds shall be provided for a limited period not to exceed two months. All requests are to be reviewed and approved or denied by the regional administrator or designee.

(((9))) (11) A departmental service authorization shall state the type, amount, and period (duration) of service. Each department authorization shall constitute a new service for a new period.

(((10))) (12) If the client becomes eligible and begins to receive Medicaid Personal Care services as defined in ((WAC 388-15-880 through 388-15-890)) 388-15-202 through 388-15-203, the family support funding will be reduced at the beginning of the next month of service. The family will receive notice of the reconfiguration of services at least five working days before the beginning of the month.

(((11))) (13) If requested family support services are not authorized, such actions shall be deemed a denial of services.

(((12))) (14) Family support services may be authorized below the amount requested by the family for the period. When, during the authorized service period, family support services are reduced or terminated below the amount specified in service authorizations, the department shall deem such actions as a reduction or termination of services.

[99-19-104, recodified as 388-825-252, filed 9/20/99, effective 9/20/99. Statutory Authority: RCW 71A.12.030, 71A.12.040 and Title 71A RCW. 97-13-051, 275-27-220, filed 6/13/97, effective 7/14/97. Statutory Authority: RCW 71A.12.040 and 43.43.745. 94-04-092 (Order 3702), 275-27-220, filed 2/1/94, effective 3/4/94. Statutory Authority: RCW 71A.12.040. 92-09-114 (Order 3372), 275-27-220, filed 4/21/92, effective 5/22/92. Statutory Authority: RCW 71.20.070. 88-05-004 (Order 2596), 275-27-220, filed 2/5/88; 86-18-049 (Order 2418), 275-27-220, filed 8/29/86.]

Reviser's note: The bracketed material preceding the section above was supplied by the code reviser's office.
AMENDATORY SECTION(Amending WSR 02-01-074, filed 12/14/01, effective 1/14/02)

WAC 388-825-254   Service need level rates.   (1) The department shall base periodic service authorizations on:

(a) Requests for family support services described in WAC 388-825-252(2) of this section;

(b) Service need levels as described in WAC 388-825-252(3) of this chapter. The amount of SSP (state supplemental payment) available to a child/family will be included when calculating the monthly allocation of state family support dollars. Service need level lid amounts are as follows:

(i) Clients designated for service need level one (WAC 388-825-256) may receive up to one thousand one hundred fifty-six dollars per month or two thousand four hundred sixty-two dollars per month if the client requires licensed nursing care in the home:

(A) If a client is receiving funding through Medicaid Personal Care or other DSHS in-home residential support, the maximum payable through family support shall be five hundred twelve dollars per month;

(B) If the combined total of family support services at this maximum plus in-home support is less than one thousand one hundred fifty-six dollars additional family support can be authorized to bring the total to one thousand one hundred fifty-six dollars.

(ii) Clients designated for service need level two may receive up to four hundred fifty-six dollars per month if not receiving funding through Medicaid personal care:

(A) If a client is receiving funds through Medicaid personal care or other DSHS in-home residential support service, the maximum receivable through family support shall be two hundred fifty-six dollars per month;

(B) If the combined total of family support services at this maximum plus in-home support is less than fifty-six hundred four dollars, additional family support can be authorized to bring the total to four hundred fifty-six dollars.

(iii) Clients designated for service need level three may receive up to two hundred fifty-six dollars per month provided the client is not receiving Medicaid personal care. If the client is receiving Medicaid personal care or other DSHS in-home residential support service, the maximum receivable through family support shall be one hundred twenty-eight dollars per month; and

(iv) Clients designated for service level four may receive up to one hundred twenty-eight dollars per month family support services.

(c) Availability of family support funding;

(d) Authorization by a review committee, in each regional office, which reviews each request for service;

(e) The amounts designated in subsection (1)(b)(i) through (iv) of this section are subject to periodic increase if vendor rate increases are mandated by the legislature.

(2) The department shall authorize family support services contingent upon the applicant providing accurate and complete information on disability-related requests.

(3) The department shall ensure service authorizations do not exceed maximum amounts for each service need level based on the availability of funds.

(4) The department shall not authorize a birth parent, adoptive parent, or stepparent living in the same household as the client as the direct care provider for respite, attendant, nursing, therapy, or counseling services for a child seventeen years of age or younger.

[Statutory Authority: RCW 71A.12.030, 71A.12.040, and 2001 2nd sp.s. c 7. 02-01-074, 388-825-254, filed 12/14/01, effective 1/14/02. Statutory Authority: RCW 71A.12.030 and 71A.12.040. 00-23-106, 388-825-254, filed 11/21/00, effective 12/22/00; 00-08-090, 388-825-254, filed 4/5/00, effective 5/6/00; 99-19-104, recodified as 388-825-254, filed 9/20/99, effective 10/21/99. Statutory Authority: RCW 71A.12.030, 71A.12.040 and Title 71A RCW. 97-13-051, 275-27-222, filed 6/13/97, effective 7/14/97.]


NEW SECTION
WAC 388-825-500   What is the state supplemental payment that will be administered by the division of developmental disabilities (DDD)?   The state supplemental payment (SSP) is a state-paid cash assistance program for certain clients of the division of developmental disabilities.

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NEW SECTION
WAC 388-825-505   What are the eligibility requirements for the DDD/SSP program?   To be eligible to receive DDD/SSP, you must be determined DDD eligible under RCW 71A.10.020 and meet all of the financial and programmatic criteria for DDD/SSP.

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NEW SECTION
WAC 388-825-510   What is the financial eligibility requirement to receive DDD/SSP?   You must be currently receiving SSI cash assistance.

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NEW SECTION
WAC 388-825-515   What are the programmatic requirements for DDD/SSP?   You received one or more of the following services from DDD with state-only funding between March 1, 2001 and February 28, 2002:

(1) Voluntary placement program;

(2) Family support;

(3) Transition program for persons born between September 1, 1979 and August 31, 1980 and in need of an employment or community access services;

(4) Residential services, i.e., adult family home, adult residential care, chore services, alternative living, group home, supported living, attendant care.

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NEW SECTION
WAC 388-825-520   How often will my eligibility for DDD/SSP be re-determined?   Redetermination of eligibility for the DDD/SSP program will be conducted at least annually, or more frequently if deemed necessary by DDD.

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NEW SECTION
WAC 388-825-525   How will I know if I am eligible to receive a DDD/SSP payment?   You will receive a written notification from DDD if you have been identified as eligible for this program.

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NEW SECTION
WAC 388-825-530   Can I choose to keep my department paid state-only services and not accept DDD/SSP payments?   You may refuse the DDD/SSP program but you cannot continue to receive your state-only services. The legislature has transferred this funding to the DDD/SSP program.

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NEW SECTION
WAC 388-825-535   Can I apply for the DDD/SSP program if I am not identified by DDD as eligible for the DDD/SSP program?   You can apply through your case resource manager to determine eligibility for SSP. Availability of SSP is limited by the availability of funding.

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NEW SECTION
WAC 388-825-540   What are my appeal rights if DDD determines that I am not eligible for DDD/SSP or that there is no funding available?   (1) You have the right to appeal the department's denial, termination, or reduction of services. Your rights to an adjudicative proceeding are in WAC 388-825-120.

(2) Your current services will not be continued while the matter is being appealed if the service termination or transfer is for a specific group of clients in order to meet the legislative intent of and comply with sections 205 and 207, chapter 371, Laws of 2002.

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NEW SECTION
WAC 388-825-545   How much money will I receive?   Your payment amount will be determined in one of two ways:

(1) If you receive state-only services, your payment will be based on the amount of state-only dollars spent on certain services between March 1, 2001 and February 28, 2002.

(2) If you have not received state-only services but need the services described in WAC 388-825-515(2), your payment will be determined based on your particular service need as identified by you and your family, and agreed to by your case manager. The division will determine the cash grant amount for each service need.

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NEW SECTION
WAC 388-825-550   How often will I receive my DDD/SSP warrant/check?   You will receive a "warrant" from the state monthly or quarterly.

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NEW SECTION
WAC 388-825-555   Who will the warrant/check be sent to?   (1) If you are a child under the age of eighteen, the warrant/check will be sent to your legal representative and/or protective payee and/or representative payee.

(2) If you are a person age eighteen and older, the warrant/check can be sent directly to you unless you have a protective payee and/or representative payee.

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NEW SECTION
WAC 388-825-560   How will the warrant/check be sent?   You may choose to have your check delivered through the US Postal Service, or as an electronic funds transfer.

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NEW SECTION
WAC 388-825-565   When will DDD/SSP begin issuing payments?   Payments will begin August 2002.

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NEW SECTION
WAC 388-825-570   Are there rules restricting how I use my DDD/SSP money?   You are free to determine the best use of your funds unless you belong to one of the following groups:

(1) Voluntary placement program (VPP): DDD/SSP funds for current VPP children must be used to purchase VPP services from a state licensed provider.

(2) Adult residential services: Requirements will vary according to residence:

Persons currently receiving services from a certified or licensed provider must use their DDD/SSP money to purchase residential services. Examples of these residential providers: Adult family home, adult residential care, group home, supported living.

(3) Transition services: Recipients will be required to purchase needed employment or community access services from a county contracted provider.

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NEW SECTION
WAC 388-825-575   Do I have additional responsibilities when I purchase my own services?   (1) When you purchase services from individuals, you become the employer. As the employer, you may have tax liabilities. If you have questions regarding employer tax issues, you can call the DSHS tax desk at (360) 664-5830.

(2) RCW 43.43.830 requires a criminal background check of any employee who will have unsupervised access to children or adults with developmental disabilities. You may get the background check done through the State Highway Patrol or DSHS. You can ask DDD to assist you with completing these background checks.

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NEW SECTION
WAC 388-825-580   What happens if I do not spend my DDD/SSP money as required in WAC 388-825-550?   DSHS has the right to recover any SSP benefit issued by DDD if it is determined that:

(1) The SSP benefits were not spent as required in WAC 388-825-550; or

(2) The client no longer receives SSI cash benefits, did not notify the case manager, and continued to collect DDD/SSP.

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3138.2
AMENDATORY SECTION(Amending WSR 01-22-020, filed 10/26/01, effective 1/1/02)

WAC 388-820-020   What definitions apply to this chapter?   "Agency" means an entity interested in becoming a service provider that offers residential instruction and support services to clients.

"Certification" means the determination by DSHS that an agency or service provider has satisfactorily complied with the requirements outlined in this chapter and in the department contract.

"Client" means a person who:

(()) (1) Has a developmental disability;

(()) (2) Is eligible under RCW 71A.10.020 (for eligibility criteria, see chapter 388-825 WAC); and

(()) (3) Is authorized by DDD to receive residential services outlined in this chapter or receives state supplemental payments to purchase residential services. (((For eligibility criteria, see chapter 388-825 WAC.)))

"Client services" means instruction and support activities that benefit clients, as specified under WAC 388-820-450 through 388-820-510.

"Community alternatives program (CAP)" means a Title XIX Medicaid waiver program that serves a specific number of individuals. This waiver is for particular home- and community-based services not covered under the Medicaid state plan. (See WAC 388-825-170 for more details.)

"Community protection services" (Community Protection Intensive Supported Living Services, or CP-ISLS) means intensive supported living services provided to clients who meet the criteria of "Individual with Community Protection Issues."

"DDD" refers to the division of developmental disabilities at DSHS.

"DSHS" refers to the department of social and health services of Washington state.

"Exceptions" means DSHS' approval of a written request for an exception to a rule in this chapter. (There are no exceptions to RCWs.)

"Group home" means residential services provided in a dwelling that is:

(()) (1) Owned, leased, or rented by an entity other than the client;

(()) (2) Licensed by the applicable state authority; and

(()) (3) Operated by a provider.

(See WAC 388-820-090 for further details.)

"Group training home" means a certified nonprofit residential facility that provides full-time care, treatment, training, and maintenance for clients, as defined under RCW 71A.22.020(2).

"IFP" refers to individual financial plan. (See WAC 388-820-620.)

"IISP" refers to the individual instruction and support plan for clients. (See WAC 388-820-560 through 388-820-580.)

"Individual with community protection issues" means a client identified by DDD as needing one or more of the following criteria:

(()) (1) The person has been convicted of or charged with a crime of sexual violence as defined in chapter 71.09 RCW, including, but not limited to, rape, statutory rape, rape of a child, and child molestation;

(()) (2) The person has been convicted of or charged with acts directed towards strangers or individuals with whom a relationship has been established or promoted for the primary purpose of victimization;

(()) (3) The person has been convicted of or charged with a sexually violent offense and/or predatory act, and may constitute a future danger;

(()) (4) The person has not been convicted and/or charged, but has 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;

(()) (5) The person has committed one or more violent crimes, such as murder, attempted murder, arson, first degree assault, kidnapping, or use of a weapon to commit a crime.

"Instruction" means goal-oriented teaching that is designed for acquiring and enhancing skills.

"ISP" refers to the individual service plan for clients. (See WAC 388-820-520 through 388-820-550.)

"Nursing assistant" means a person who is registered or certified by department of health under chapter 18.88A RCW. A nursing assistant performs certain nursing care tasks that are delegated by a registered nurse for a specific client in authorized settings. (See chapter 246-841 WAC for more details.)

"Reprisal" means any negative action taken as retaliation against an employee.

"Residential service" means client services offered by certified service providers.

"Secretary" means the secretary of the department of social and health services or the secretary's designee.

"Service provider" means an agency certified by and contracted with DDD to provide residential services to clients.

"Severity" means the seriousness of an incident. This is determined by the extent to which a client's physical, mental, or psychosocial well-being is or may be compromised or threatened.

"Support" means assistance as requested or needed by a client, based on their abilities, needs, and goals.

"Supported living" means residential services provided to clients living in their own homes, which are owned, rented, or leased by the clients or their legal representatives. (See WAC 388-820-080 for more details.)

"Trust account" means a bank account containing two or more clients' funds where the service provider has the authority to make deposits and withdrawals.

[Statutory Authority: Title 71A RCW. 01-22-020, 388-820-020, filed 10/26/01, effective 1/1/02; 99-19-104, recodified as 388-820-020, filed 9/20/99, effective 9/20/99. Statutory Authority: RCW 71A.12.080. 91-17-005 (Order 3230), 275-26-020, filed 8/9/91, effective 9/9/91. Statutory Authority: Chapter 72.33 RCW. 86-08-003 (Order 2349), 275-26-020, filed 3/20/86; 83-05-017 (Order 1945), 275-26-020, filed 2/9/83.]


AMENDATORY SECTION(Amending WSR 01-22-020, filed 10/26/01, effective 1/1/02)

WAC 388-820-060   Who may receive residential services?   Clients ((who)) may receive residential services if they are at least eighteen years old and either authorized by DDD ((may receive)) or have an agreement with the service provider to purchase residential services from their own resources.

[Statutory Authority: Title 71A RCW. 01-22-020, 388-820-060, filed 10/26/01, effective 1/1/02; 99-19-104, recodified as 388-820-060, filed 9/20/99, effective 9/20/99. Statutory Authority: RCW 71A.12.080. 91-17-005 (Order 3230), 275-26-070, filed 8/9/91, effective 9/9/91. Statutory Authority: Chapter 72.33 RCW. 83-05-017 (Order 1945), 275-26-070, filed 2/9/83.]


AMENDATORY SECTION(Amending WSR 01-22-020, filed 10/26/01, effective 1/1/02)

WAC 388-820-120   Who pays for a client's residential services?   (1) DSHS must pay for residential services provided to department-funded clients under department contract at the contracted rate.

(2) ((DSHS must require a client to share the cost of services when mandated by federal or state statute or regulation)) Clients not included in the department contract may purchase services privately through a separate agreement with the service provider.

(3) The service provider must inform DSHS when the ((client)) department-funded clients requires additional supports.

(a) The service provider must submit a written request with justification for additional service hours.

(b) DSHS may approve and provide payment for additional expenses or services.

(c) The service provider must retain a copy of department approval.

(4) For a client who is receiving group home services and support:

(a) The client must pay for cost of care or services from earnings or other financial resources. Clients receiving SSI are responsible only for the cost of room and board.

(b) DSHS may pay for these services only after a department-funded client has used his or her own financial resources.

(c) When a client's guardian or legal representative controls the client's income, estate, or trust fund, they must reimburse the service provider as described in WAC 388-820-120.

(5) Clients receiving supported living services must pay for their own housing, utilities, food, clothing, and other personal and incidental expenses from earnings and other financial resources.

[Statutory Authority: Title 71A RCW. 01-22-020, 388-820-120, filed 10/26/01, effective 1/1/02; 99-19-104, recodified as 388-820-120, filed 9/20/99, effective 9/20/99. Statutory Authority: RCW 71A.12.080. 91-17-005 (Order 3230), 275-26-107, filed 8/9/91, effective 9/9/91.]

3139.1
AMENDATORY SECTION(Amending Order 3230 [WSR 99-19-104], filed 9/20/99, effective 9/20/99)

WAC 388-850-035   Services -- Developmental disabilities.   (1) A county may purchase and provide services listed under chapter 71A.14 RCW.

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

(b) DD eligible persons who receive SSP funding for transition services shall pay the county or a county contracted provider for services.

(2) 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.

[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.]

Reviser's note: The bracketed material preceding the section above was supplied by the code reviser's office.

Washington State Code Reviser's Office