WSR 02-16-061

PROPOSED RULES

DEPARTMENT OF

SOCIAL AND HEALTH SERVICES
(Health and Rehabilitative Services Administration)

[ Filed August 2, 2002, 3:31 p.m. ]

Original Notice.

Preproposal statement of inquiry was filed as WSR 98-22-057.

Title of Rule: New chapter 388-826 WAC, Voluntary placement program.

Purpose: The purpose of proposed new chapter 388-826 WAC is to describe the voluntary placement program in the Division of Developmental Disabilities and clarify who participates, how participation may occur, and the responsibilities for overall program management.

Statutory Authority for Adoption: RCW 74.13.350, Title 71A RCW.

Statute Being Implemented: RCW 74.13.350, 71A.12.030.

Summary: The rules define participation, out-of-home placement, voluntary agreement and the manner in which children and youth might be served in this program when they meet the definition of developmental disabilities as defined in RCW 71A.12.030. The rules define certain key terms, set criteria for determining when out-of-home is appropriate; describe the process for out-of-home placement; and the roles and responsibilities of birth/adoptive parents and foster parents.

Reasons Supporting Proposal: The rules guide the policies and procedures for program management.

Name of Agency Personnel Responsible for Drafting, Implementation and Enforcement: Linda Gil, DSHS/DDD, P.O. Box 45310, Office Building 2, Olympia, WA 98504-5310, (360) 902-8440.

Name of Proponent: DSHS/DDD, 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: The purpose of proposed new chapter 388-826 WAC is to provide definitions of program components regarding who may be involved in the voluntary placement program. The proposed rules include the responsibilities and conditions of program participation.

Proposal does not change existing rules.

No small business economic impact statement has been prepared under chapter 19.85 RCW. While this WAC chapter clarifies the way in which children may be cared for in licensed foster care homes and group care settings, the proposed WAC will not impose new or additional costs to any licensed setting that might operate as a small business.

RCW 34.05.328 applies to this rule adoption. The department has determined that the proposed rules meet the definition of "significant legislative rules" per RCW 34.05.328. A cost-benefit analysis has been prepared and is available by contacting the person listed above.

Hearing Location: Blake Office Park (behind Goodyear Courtesy Tire), 4500 10th Avenue S.E., Rose Room, Lacey, WA 98503, on September 24, 2002, at 11:00 a.m.

Assistance for Persons with Disabilities: Contact Andy Fernando, DSHS Rules Coordinator, by September 6, 2002, phone (360) 664-6094, TTY (360) 664-6178, e-mail FernaaX@dshs.wa.gov.

Submit Written Comments to: Identify WAC Numbers, DSHS Rules Coordinator, Rules and Policies Assistance Unit, P.O. Box 45850, Olympia, WA 98504-5850, fax (360) 664-6185, e-mail fernaax@dshs.wa.gov, by 5:00 p.m., September 24, 2002.

Date of Intended Adoption: Not earlier than September 25, 2002.

July 21, 2002

Brian H. Lindgren, Manager

Rules and Policies Assistance Unit

3111.6
Chapter 388-826 WAC

VOLUNTARY PLACEMENT PROGRAM


NEW SECTION
WAC 388-826-0001   What is the purpose of the voluntary placement program?   The purpose of the voluntary placement program is to:

(1) Support the optimal growth and development of the child or youth in out-of-home placement. The sole reason for the out-of-home placement is the child's developmental disability. Services are offered by DSHS/DDD through a voluntary placement agreement. Parents retain custody of their child or youth.

(2) Support the child and family with a shared parenting arrangement through the use of licensed foster care providers.

(3) Complement other public and private resources in providing supports to the child and family.

(4) Encourage the relationship between the child and parents, even when the child or youth is not living in their own home.

(5) These rules are adopted under the authority of RCW 74.13.350.

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NEW SECTION
WAC 388-826-0005   Definitions.   "Best interest" includes, but is not limited to:

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

(2) Achieve or maintain self-sufficiency;

(3) Provide the least restrictive setting that will meet the child's/youth's medical, social, developmental and personal needs;

(4) Benefits the medical, personal, social and developmental needs of the child/youth;

(5) Maintains family relationships.

"Child or youth" means an individual who is eligible for division services per RCW 71A.16.040 and chapter 388-825 WAC, is less than eighteen years of age and who is in the custody of a parent by blood, adoption or legal guardianship.

"Client or person" means an individual is eligible for division services per RCW 71A.16.040 and WAC 388-825-030.

"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, social work, early childhood intervention, employment, family counseling, respite care, information and referral, health services, legal services, therapy services, residential services and support, transportation services, and vocational services.

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

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

"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 related by blood, marriage, adoption or as a result of sharing legal custody of a minor child.

"Foster care provider" means the individual person licensed by the DSHS, children's administration, division of licensed resources (DLR) (chapter 388-148 WAC) to provide foster care in the person's home; or a group care agency licensed by DLR to provide foster care for an individual in a group facility or staffed residential setting.

"In the voluntary placement program the legal status of the child" means that the child is in legal custody of the biological or adoptive parent(s) or legal and custodial guardian.

"The judicial determination and review" means a process that occurs in court and its purpose is to affirm that out-of-home placement is in the best interest of the child. The parent is notified of the court date and may appear in court with the child's DDD social worker.

"Out-of-home placement" means a DLR licensed home, a licensed group care facility or another licensed setting.

"Parent" means the individual who is the biological or adoptive person or legal custodial guardian who has legal responsibility for and physical custody of the child.

"Shared parenting" means biological or adoptive parents or legal guardians and foster care providers share responsibilities. Responsibilities are for the physical and emotional care, education and medical well-being of child/youth who meets DDD eligibility criteria and who is in a voluntary out of home placement as is described in the shared parenting agreement.

"Shared parenting plan" means a written plan among the parent, a foster care provider and DDD, with the expectation of sharing responsibilities for care of a child/youth, including exchanging information on a routine basis about medical, education, daily routines and special situations in the life of the child/youth.

"Voluntary out-of-home placement" for a child who is eligible for DDD services means:

(1) When a parent and the division of developmental disabilities (DDD) agree that it is in the best interest of the child to reside out of the home of the parents;

(2) The placement is solely due to the child's disability;

(3) There are no unresolved issues of abuse and neglect;

(4) When the parent or custodial and legal guardian and division sign a voluntary placement agreement; and

(5) When a child lives more than fifty percent of her/his life in a licensed setting that is other than in the parents' home. The setting may be a licensed foster family home, group care facility, or staffed residential home as licensed under chapter 74.15 RCW.

"Voluntary placement agreement," as used in this section, means a written agreement between the department and a child's parent or legal guardian authorizing the department to place the child in a licensed facility.

"Written request for out-of-home placement" means a written request signed by the custodial parent requesting out-of-home placement for the child or youth under eighteen years of age.

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NEW SECTION
WAC 388-826-0010   Who is eligible for the voluntary placement program?   Children who:

(1) Are determined eligible for DDD services under RCW 71A.16.040;

(2) Are under eighteen years of age when the request for services through VPP is made;

(3) Have no unresolved issues of abuse or neglect pending with DSHS children's administration;

(4) Are in the legal and physical custody of their parent or legal guardian; and

(5) The request is made solely due to the child's disability RCW 74.13.350 and parents have used all other appropriate services for their child through DDD.

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NEW SECTION
WAC 388-826-0015   Who else may be eligible to participate in the voluntary placement program?   Within available resources:

(1) Children or youth who are eligible for DDD services per RCW 71A.16.040, may transfer from children's administration, as long as they are under eighteen years of age, in a stable guardianship, and have no unresolved issues of abuse or neglect pending with children's administration.

(2) Youth who turn eighteen while in the VPP and reside in a DLR licensed setting, may continue to participate in VPP until age twenty-one as long as her/his placement remains in tact and does not disrupt and she/he remains in school until graduation or reaches age twenty-one, whichever comes first (see WAC 388-826-0115).

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NEW SECTION
WAC 388-826-0020   How does the family, whose child who is a client of DDD request access to the VPP?   Parents must make a written request for voluntary out-of-home placement services (DSHS 10-277) for their child to their DDD case resource manage. The request is considered when the following criteria are met:

(1) The child is under eighteen years of age;

(2) The placement is due solely to the child's disability;

(3) The family is currently using some DDD services or is on the list for services;

(4) There are available funds for the VPP;

(5) There are no issues of abuse and neglect; and

(6) The custodial parent and the division of developmental disabilities (DDD) agree that it is in the best interest of the child to reside outside of the parent's home.

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NEW SECTION
WAC 388-826-0025   What is the process for a child or youth who transfers from children's administration to get into the VPP?   (1) At the regional level, a staffing occurs. It involves DDD and DCFS social workers and supervisors, and any other agency representatives who have knowledge of the child or youth's issues.

(2) At the staffing the participants discuss the criteria outlined in WAC 388-826-0010 and 388-826-0015.

(3) Within available resources and when appropriate criteria are met, social workers determine the appropriateness of the transfer of the child's case from one administration to the other.

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NEW SECTION
WAC 388-826-0030   How is a decision made for out-of-home placement?   A parent makes a written request for out-of-home placement, to her/his child's case manager. Prior to a decision for out-of-home placement, a staffing is held. The purpose of the staffing is to determine whether all other available and appropriate services have been used or could be used by the family. The parents, the DDD case manager, the DDD social worker, and/or resource developer and where appropriate, DCFS social worker may participate in staffings.

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NEW SECTION
WAC 388-826-0035   How is a decision made regarding participation in the voluntary placement program?   (1) A decision regarding participation in VPP is based on the premise that all available DDD services to the child and family have been used and that out-of-home placement is in the best interest of the child and that the placement is due solely to the child's disability;

(2) There are funds available in VPP;

(3) Through a staffing, the family's DDD case resource manager, VPP supervisor and VPP social worker, and any other person who can provide useful information, discuss the services used, and share information and resources regarding the needs of the family and child;

(4) DDD and the parents must be in agreement about the need for out-of-home placement and that the request fits the criteria for the program. When both parties are in agreement, a written voluntary placement agreement is signed by the parent and DDD representative:

(a) If there are no funds available, parents may sign a request for out-of-home placement (DSHS 10-277);

(b) When it is determined that the request is appropriate, the child or youth is eligible for out-of-home placement, there are available funds and there is a placement, the agreement is signed and the child's file is transferred to a DDD social worker in the voluntary program;

(c) If there are funds available, the consideration for out-of-home placement continues. The name of the child/youth is placed on the VPP database for consideration of placement outside the home.

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NEW SECTION
WAC 388-826-0040   What is a voluntary placement agreement?   It is a mutually voluntary and written document between the parent and the department. It must be signed by the child's parent and the DSHS/DDD representative to be in effect. An agreement regarding a Native American child is not valid unless executed in writing before the court and filed with the court as provided in RCW 13.34.130. Any party to the voluntary placement agreement may terminate the agreement at any time. When one party ends the agreement, per the VPA, the voluntary agreement is ended.

The agreement authorizes DSHS/DDD to facilitate a placement for the child who is under eighteen years of age in a licensed facility. Under the term of the agreement, the parent retains legal custody. DSHS/DDD is responsible for the child's placement and care. The agreement shall at a minimum specify the legal status of the child and the rights and obligations of the parent or legal guardian, the child, and the department while the child is in placement.

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NEW SECTION
WAC 388-826-0045   What happens after a voluntary placement agreement is signed, what are the legal issues and who is responsible?   When the DDD social worker facilitates the placement of a child in a licensed out-of-home care arrangement, under a DDD voluntary placement agreement, the department has the responsibility for the child's placement and care. The department shall:

(1) In conjunction with the parents, develop an individual services plan for the child no later than sixty days from the date that the department assumes responsibility for the child's placement and care;

(2) Develop a shared parenting plan with foster care providers and parents;

(3) Obtain a judicial determination, within one hundred eighty days of placement, in accordance with RCW 13.34.030 and 13.34.270 that the placement is in the best interest of the child;

(4) Attend the permanency planning hearing reviews where a review of the child's out-of-home placement determines if it continues to be in the best interest of the child to continue the out-of-home placement;

(5) Make a face-to-face visit with the child and visit with the child in their licensed placement, every ninety days;

(6) Facilitate a judicial review at one hundred eighty days and annually thereafter, unless the child's placement ends before one hundred eighty days have elapsed;

(7) Provide for periodic administrative reviews of the child's case, unless a judicial review occurs every one hundred eighty days after initial placement.

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NEW SECTION
WAC 388-826-0050   Is there an ongoing court process when the child is in out-of-home placement and how does the process work?   The ongoing court process involves the following activities:

(1) When a child is placed in a licensed out-of-home setting, within one hundred eighty days, the DDD social worker must file an order with the court that says the custodial and legal parent has signed a voluntary placement agreement with DDD and voluntarily requests placement of their child in out-of-home care;

(2) The child's DDD social worker prepares the necessary papers and files them with the court clerk; and

(3) Once a year, the DDD social worker prepares a report that must be presented to the court. It is called an order for continued placement and it describes in the words of the social worker, why the out-of-home placement continues to be in the best interest of the child.

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NEW SECTION
WAC 388-826-0055   What basic services may a family receive from the voluntary placement program?   (1) Shared parenting between foster care providers and parents on daily routines;

(2) Medical coverage, under a medical coupon issued from the foster care medical unit (FCMU);

(3) Special education services in the local school district when the child meets eligibility criteria;

(4) Supervised special activities in the community when appropriate;

(5) Safe, developmentally appropriate care;

(6) Supervision by a DDD social worker who has responsibility for visiting the child/youth at a minimum, every ninety days;

(7) An individual services plan for the child within sixty days from the date that DSHS/DDD assumes responsibility for the child's placement and care;

(8) DDD social worker prepares documents for court, and pursuant to RCW 13.34.030 and 13.34.270 shares the documents at the court hearings in order to determine that the placement is in the best interest of the child;

(9) Social work services such as needs assessment, referral, service coordination and case monitoring;

(10) Early intervention services: DDD ensures coordination of services for children from birth through thirty-five months of age with early intervention and special education; and

(11) Medically intensive services under WAC 388-531-3000.

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NEW SECTION
WAC 388-826-0060   Are there other services a child may receive in this program?   In-home supports may be available to support a child in the parent's home. Approval of in-home support services is based on available funds. The criteria to receive in-home supports when there are available funds are:

(1) Children whose current out of home placement disrupts and who are awaiting new out-of-home placements;

(2) Children whose names are on the database and whose parents have signed a "request for out-of-home placement."

Service need level for in-home services are evaluated within six months and reviewed every ninety days thereafter. Any reduction in service or denial of services allows the child's family the right to appeal the decision under chapter 388-825 WAC.

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NEW SECTION
WAC 388-826-0065   What can parents expect if they use in-home supports under this program?   Within available funds, the parent's child may sometimes receive supports. Supports may be in the form of respite services, specialized behavioral support, and other services that are needed to support the child's continued living arrangement in the parent's home. A person meeting provider qualifications may provide the supports to the child in the home, through a contract with DDD.

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NEW SECTION
WAC 388-826-0070   What is the responsibility of the department for the child who is in out-of-home care?   When DDD facilitates an out-of-home placement, DDD is responsible for:

(1) A voluntary placement agreement according to this section;

(2) Monitoring of the child's placement and care;

(3) A permanency plan of care for the child;

(4) A plan that monitors the health, safety and appropriateness of the child's placement at a minimum every ninety days, making face-to-face visits at that time; and

(5) The DDD social worker maintains any records as required by court oversight.

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NEW SECTION
WAC 388-826-0075   What are the responsibilities of the parents when their child receives services in the voluntary placement program?   Parents retain custody of their child at all times when the child is receiving services in the voluntary placement program. Parents responsibilities include, but are not limited to, the following:

(1) The right to make all major nonemergency decision about medical care, enlistment in military service, marriage and other important legal decisions for the person under eighteen years of age;

(2) Maintain ongoing and regular contact with the child;

(3) Agree to work cooperatively with their child's DDD social worker and other DSHS staff and persons caring for their child;

(3) Participate in decision making for their child;

(4) Cooperate with DDD in selecting a representative payee for the child's Social Security benefits, received from the Social Security Administration, and which are used for basic maintenance while the child is in out-of-home care;

(5) Agree that if their child's out-of-home placement disrupts, their child will return to the parents physical care until a new placement is developed. The parent's signature on the voluntary placement agreement confirms their understanding of the responsibilities listed in the VPA.

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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.
NEW SECTION
WAC 388-826-0080   What are the expectations for parents when their child is in out-of-home care?   Parents are expected to be active in the "shared parenting" plan and continue to be involved in their child's life. The plan is a written agreement between the licensed foster parents or provider caring for the child and the child's parents. It includes:

(1) Responsibilities of legal and foster parents or provider;

(2) Plan for respite;

(3) Emergency procedures;

(4) Planned activities;

(5) Expectations and special considerations; and

(6) Involvement on a regular basis by the parent.

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NEW SECTION
WAC 388-826-0085   Are other DDD services available for a child through the voluntary placement program?   When a parent signs a voluntary placement agreement and the child enters the VPP, the child will no longer be eligible for services from the family support opportunity program, or the Medicaid Personal Care program. A parent will not be able to obtain other DDD services when the parent's child is in the VPP. The DDD services will be authorized and obtained through the VPP. Some services will be similar to other DDD services, but they will not be paid for out of any other program besides the VPP, as long as the child is receiving services in the VPP.

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NEW SECTION
WAC 388-826-0090   What does a parent do with the child's Social Security benefits when the parent's child lives outside the parent's home?   (1) When a parent signs a DDD VPA, the DDD social worker shares with the parent a list of representative payee agencies. From the list, parents must select a representative payee for their child's SSI benefits.

(2) Each month, the child's SSI check will be sent to the representative payee. The portion of the check designated for "room and board," the amount that is allowed for basic maintenance while in foster care and when parents are not caring for their child in their own home, is sent to the licensed foster care provider for reimbursement for basic maintenance.

(3) The representative payee sets aside an amount from the child's SSI warrants designated as "client personal incidentals or CPI" and it is entered into a trust account for the child or youth. It is made available for items that are of a direct benefit to the child. The representative payee monitors the account held in trust for the child and notifies the DDD social worker when the account is within three hundred dollars of the maximum reserve exemption allowance.

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NEW SECTION
WAC 388-826-0095   Who pays for a child's care when a child is in out-of-home placement?   State funds, federal funds and the child's SSI, that is used for basic maintenance support the cost of the child's care while the child is in licensed out-of-home placement. The parent is encouraged to continue to support their child with typical activities, e.g., presents, clothing, special items, special outings. Licensed providers who care for the child in a licensed setting will be paid directly through a contract with DDD and according to an established rate structure, established within DDD.

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NEW SECTION
WAC 388-826-0100   What happens if the voluntary placement ends?   The child must be returned to the physical care of the child's legal parent unless the child has been taken into custody pursuant to RCW 13.34.050 or 26.44.050, placed in shelter care pursuant to RCW 13.34.060, or placed in foster care pursuant to RCW 13.34.130. The agreement as described in RCW 74.13.350, between DDD and legal parents is completely voluntary. Per RCW 74.13.350, any party may terminate the agreement at any time.

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NEW SECTION
WAC 388-826-0105   When the child leaves the voluntary placement program for any reason, what DDD services are available to the child and family when voluntary placement ends?   Depending on availability of funds, the child and family may be eligible for other DDD programs and that would support the child.

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NEW SECTION
WAC 388-826-0110   Will a child or youth continue to receive special education or early intervention services while in VPP?   (1) Early intervention services are available to a child, birth through thirty-five months when in VPP and when that child meets the early intervention eligibility criteria.

(2) When a child or youth meets eligibility criteria for special education programs, ages three to twenty-one years, the child or youth continues to receive special education services through their local public school district.

(3) Office of superintendent of public instruction is responsible for the special education program for the eligible children, ages three to twenty-one years, RCW 28A.155.220 allows that children and youth who meet eligibility criteria may remain in special education until graduation, if that occurs during the school year.

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NEW SECTION
WAC 388-826-0115   What happens after a youth turns eighteen?   When a youth turns eighteen, and is considered an adult, while in the voluntary placement program, the youth may remain in the child foster home, in VPP, under the following circumstances:

(1) Youth remains in the education or vocational program in the local public school district in which he/she has been enrolled until graduation or age twenty-one, whichever is earlier, per WAC 392-172-030(2), RCW 74.13.031 (10) and (13), 28A.155.020, and 28A.155.030;

(2) The placement remains intact and does not disrupt;

(3) When needed, youth who turns eighteen can self-administer medication.

(4) Youth cannot remain in foster care, living in a child foster home, and in VPP, after eighteen years of age when:

(a) The child foster home placement disrupts;

(b) The youth leaves education or vocational program; or

(c) The youth who turns eighteen needs someone to administer medication.

Dependency guardianships end at age eighteen. If a youth has been in a legal guardianship, under chapter 11.88 RCW and if the reason for guardianship was the minority of the child the guardianship ends.

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NEW SECTION
WAC 388-826-0120   What happens if a parent disagrees with a decision made by DDD?   If a parent disagrees with a decision made by DDD staff, the parent has the right to pursue the appeal process, as outlined in RCW 71A.10.050 and chapter 388-02 WAC.

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NEW SECTION
WAC 388-826-0125   Does DDD make exceptions to the requirements in this chapter?   DDD may grant exceptions to the requirements specified in this chapter as long as the DDD director approves the request in writing within sixty days.

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Washington State Code Reviser's Office