Effective Date of Rule: Thirty-one days after filing.

     Purpose: The purpose of these changes is to identify how the department is implementing 2SSB 5459 and further amended state law, chapter 71A.20 RCW, directing that no person under the age of sixteen years may be admitted to receive services at a residential habilitation center. In addition, that no person under the age of twenty-one years may be admitted to receive services at a residential center, unless there are no service options available in the community to appropriately meet the needs of the individual. Such admission is limited to the provision of short-term respite or crisis stabilization services.

     In addition, new sections include how the department will provide a consistent, statewide process for determining what individuals may receive enhanced respite services in the community and how long they may receive those services.

     Additional changes were made to all references of "mental retardation" to "intellectual disability." This change to respectful language was signed by the governor in HB 2490 and is incorporated within RCW 44.04.280, state and due to comments received we have made some clarification changes.

     Citation of Existing Rules Affected by this Order: Amending WAC 388-825-020, 388-825-068, 388-825-069, 388-825-0871, 388-825-088, 388-825-089, 388-825-091, 388-825-093, 388-825-094, 388-825-096, and 388-825-120.

     Statutory Authority for Adoption: RCW 71A.12.030, 44.04.280, 2SSB 5459 and further amended state law, chapter 71A.20 RCW.

      Adopted under notice filed as WSR 12-16-101 on August 1, 2012.

     Changes Other than Editing from Proposed to Adopted Version: WAC 388-825-061: Because of comments received and advice from our AAG we have decided to withdraw this change and update it and other sections related to ITEIP during our next update to this chapter.

Initial Proposal:

     WAC 388-825-061 What service am I eligible for if I am under the age of three?

     DDD has withdrawn this change and will be updating WAC 388-825-061, 388-825-062, 388-825-063, and 388-825-066 in the future.

Revised Version:

     WAC 388-825-061 What service am I eligible for if I am under the age of three? (1) Children under age three (0-36 months) may be eligible for the Early Support for Infants and Toddlers (ESIT) program under the Individuals with Disabilities Education Act, (IDEA), Part C, and Washington's federally approved plan. The ESIT is a statewide, multi-agency program, administered by and located within the department of early learning, to coordinate a system of early intervention services for children, birth to three, and their families under the federal Individuals with Disabilities Education Act (IDEA), Part C.

     WAC 388-825-094: Changes to this section were to clarify that a person in a RHC does not live there but only receives services while there.

Initial Proposal:

     WAC 388-825-094 Can I request to live in an RHC? You may request admission to an RHC at any time. RHC admissions are not considered permanent.

     (1) Your case/resource manager will update your DDD assessment and gather other information.

     (2) Admission to an RHC requires approval by the director of the division of developmental disabilities or designee.

     (3) You must be twenty one years old or older.

Revised Version:

     WAC 388-825-094 Can I request to receive services in an RHC? You may request to receive services in an RHC at any time. RHC admissions are not considered permanent.

     (1) Your case/resource manager will update your DDD assessment and gather other information.

     (2) Admission to an RHC requires approval by the director of the division of developmental disabilities or designee.

     (3) You must be twenty-one years of age or older to be admitted as a long-term resident.

     Number of Sections Adopted in Order to Comply with Federal Statute: New 3, Amended 11, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 0, 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 3, Amended 11, Repealed 0.

     Date Adopted: October 29, 2012.

Katherine I. Vasquez

Rules Coordinator

     "Client or person" means a person who has a developmental disability as defined in RCW 71A.10.020(3) who also has been determined eligible to receive services by the division under chapter 71A.16 RCW.

     "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 within the aging and disability services administration of the department of social and health services.

     "Enhanced respite services" means respite care for DDD enrolled children and youth, who meet specific criteria, in a DDD contracted and licensed staffed residential setting.

     "Family" means relatives who live in the same home with the eligible client. Relatives include spouse or registered domestic partner; natural, adoptive or step parent; grandparent; child; stepchild; sibling; stepsibling; uncle; aunt; first cousin; niece; or nephew.

     "((ICF/MR)) ICF/ID" means a facility certified as an intermediate care facility for ((the mentally retarded)) intellectually disabled by Title XIX to provide diagnosis, treatment and rehabilitation services to the ((mentally retarded)) individuals with intellectual disabilities or ((persons)) individuals with related conditions.

     "((ICF/MR)) ICF/ID eligible" for admission to an ((ICF/MR)) ICF/ID means a person is determined by DDD as needing active treatment as defined in C.F.R. 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 support plan (ISP)" is a document that authorizes and identifies the DDD paid services to meet a client's assessed needs.

     "Medicaid personal care" is the provision of medically necessary personal care tasks as defined in chapter 388-106 WAC.

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

     "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 nonfacility based, such as supported living and state-operated living alternatives (SOLA). Other residential programs include alternative living (as described in chapter 388-829A WAC, companion homes (as described in chapter 388-829C WAC), adult family homes, adult residential care services, children's foster homes, group care and staffed residential homes.

     "Respite care" means short-term intermittent care for DDD clients in order to provide relief for persons who normally ((providing)) provide that care ((for the individuals)).

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

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

[Statutory Authority: RCW 71A.12.030 and 71A.12.040. 10-02-101, § 388-825-020, filed 1/6/10, effective 2/6/10. Statutory Authority: RCW 71A.10.015, 71A.12.020, 71A.12.030, and Title 71A RCW. 08-11-072, § 388-825-020, filed 5/19/08, effective 6/19/08. Statutory Authority: RCW 71A.12.030, 71A.10.020 and 2002 c 371. 04-02-014, § 388-825-020, filed 12/29/03, effective 1/29/04. Statutory Authority: RCW 71A.16.010, 71A.16.030, 71A.12.030, chapter 71A.20 RCW, RCW 72.01.090, and 72.33.125. 02-16-014, § 388-825-020, filed 7/25/02, effective 8/25/02. 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.]

     (1) Medicaid personal care, per chapter 388-106 WAC;

     (2) Private duty nursing for adults age eighteen and older; per chapter 388-106 WAC;

     (3) Private duty nursing for children under the age of eighteen, per WAC ((388-551-3000)) 182-551-3000;

     (4) Adult day health for adults, per chapter 388-106 WAC; and

     (5) ((ICF/MR)) ICF/ID services, per chapters 388-835 and 388-837 WAC.

[Statutory Authority: RCW 71A.12.030, 71A.12.040, 71A.14.030, 2009 c 564, section 205 (1)(j), and section 1915(i) of the Social Security Act. 10-04-002, § 388-825-068, filed 1/21/10, effective 2/21/10. Statutory Authority: RCW 71A.10.015, 71A.12.020, 71A.12.030, and Title 71A RCW. 08-11-072, § 388-825-068, filed 5/19/08, effective 6/19/08.]

     (2) Certain federal regulations governing ((ICF/MRs)) ICF/IDs are "waived" enabling the provision of services in the home and community to persons who would otherwise require the services provided in an ((ICF/MR)) ICF/ID as defined in chapters 388-835 and 388-837 WAC.

[Statutory Authority: RCW 71A.10.015, 71A.12.020, 71A.12.030, and Title 71A RCW. 08-11-072, § 388-825-069, filed 5/19/08, effective 6/19/08.]

     (1) Contracted and DDD-certified community based residential services for adults;

     (2) Contracted community based services for children; and

     (3) Residential habilitation centers (RHC) for a person ((of any age)) who requires ((ICF/MR)) ICF/ID or nursing facility care.

     (a) On a short-term basis for those ages sixteen through twenty; or

     (b) On a short or long-term basis if age twenty-one or older.

[Statutory Authority: RCW 71A.10.015, 71A.12.020, 71A.12.030, and Title 71A RCW. 08-11-072, § 388-825-0871, filed 5/19/08, effective 6/19/08.]

     (1) Certified community residential services and supports are contained in chapter 388-101 WAC and include information regarding:

     (a) Group homes (GH);

     (b) Group training home;

     (c) Supported living (SL); and

     (d) State operated living alternative (SOLA).

     (2) Alternative living services are contained in chapter 388-829A WAC;

     (3) Companion home services are contained in chapter 388-829C WAC;

     (4) Voluntary placement program services for children are contained in chapter 388-826 WAC and include information regarding:

     (a) Foster homes;

     (b) Group homes;

     (c) ((Group training homes;

     (d))) Child placing agencies; and

     (((e))) (d) Staffed residential homes.

[Statutory Authority: RCW 71A.10.015, 71A.12.020, 71A.12.030, and Title 71A RCW. 08-11-072, § 388-825-088, filed 5/19/08, effective 6/19/08.]

     (1) Rainier School in Buckley, Washington;

     (2) ((Francis Hadden Morgan Center in Bremerton, Washington;

     (3))) Fircrest School in Shoreline, Washington;

     (((4))) (3) Yakima Valley School in Selah, Washington; and

     (((5))) (4) Lakeland Village in Medical Lake, Washington.

[Statutory Authority: RCW 71A.12.030 and 71A.12.040. 10-02-101, § 388-825-089, filed 1/6/10, effective 2/6/10. Statutory Authority: RCW 71A.10.015, 71A.12.020, 71A.12.030, and Title 71A RCW. 08-11-072, § 388-825-089, filed 5/19/08, effective 6/19/08.]

     (1) You are currently DDD eligible;

     (2) You choose to receive services in the RHC;

     (3) You need the level of care provided at the RHC; ((and))

     (4) DDD has determined that you can be supported safely in an RHC environment and will not pose a danger to other residents of the RHC; and

     (5) You are sixteen years old or older.

[Statutory Authority: RCW 71A.10.015, 71A.12.020, 71A.12.030, and Title 71A RCW. 08-11-072, § 388-825-091, filed 5/19/08, effective 6/19/08.]

     (1) Short term stays are limited by available vacancies;

     (2) Short term stays must be included in your individual support plan; ((and))

     (3) Short term stays in excess of thirty days in a calendar year require approval by the director of the division of developmental disabilities; and

     (4) You are sixteen years old or older.

     (a) If you are sixteen through twenty years of age your stay will only be for short-term respite or crisis stabilization purposes.

[Statutory Authority: RCW 71A.10.015, 71A.12.020, 71A.12.030, and Title 71A RCW. 08-11-072, § 388-825-093, filed 5/19/08, effective 6/19/08.]

     (1) Your case/resource manager will update your DDD assessment and gather other information.

     (2) Admission to an RHC requires approval by the director of the division of developmental disabilities or designee.

     (3) You must be twenty-one years old or older to be admitted as a long-term resident.

[Statutory Authority: RCW 71A.10.015, 71A.12.020, 71A.12.030, and Title 71A RCW. 08-11-072, § 388-825-094, filed 5/19/08, effective 6/19/08.]

     (2) If DDD authorizes you to live in a licensed community residential facility you must pay your room and board costs from your earned and unearned income. You may also be responsible for a portion of the cost of your care.

     (a) If you are eligible for and receiving SSI or have SSI related eligibility per WAC 388-475-0100 (2)(a) or (b), you are not required to pay toward the cost of your care if you are living at home or in a community setting.

     (b) If you are enrolled in a DDD HCBS waiver you must pay toward the cost of your services as described in WAC 388-515-1510.

     (c) If you are not enrolled in a DDD HCBS waiver you must pay toward the cost of your services as described in WAC 388-106-0225.

     (3) If you live in a medical institution you must pay toward the cost of your care as described in WAC 388-513-1380. See WAC ((388-500-0005)) 182-500-0005 for the definition of a medical institution.

[Statutory Authority: RCW 71A.10.015, 71A.12.020, 71A.12.030, and Title 71A RCW. 08-11-072, § 388-825-096, filed 5/19/08, effective 6/19/08.]

     (2) A client, former client, or applicant acting on the applicant's own behalf or through an authorized representative has the right to an administrative hearing.

     (3) You have the right to an administrative hearing to dispute the following department actions:

     (a) Authorization, denial, reduction, or termination of services;

     (b) Reduction or termination of a service that was initially approved through an exception to rule;

     (c) Authorization, denial, or termination of eligibility;

     (d) Authorization, denial, reduction, or termination of payment of SSP authorized by DDD set forth in chapter 388-827 WAC;

     (e) Admission or readmission to, or discharge from, a residential habilitation center set forth in WAC 388-825-155;

     (f) Refusal to abide by your request not to send notices to any other person;

     (g) Refusal to comply with your request to consult only with you;

     (h) A decision to move you to a different type of residential service;

     (i) Denial or termination of the provider of your choice or the denial of payment for any reason listed in WAC 388-825-375 through 388-825-390;

     (j) An unreasonable delay to act on an application for eligibility or service;

     (k) A claim the client, former client, or applicant owes an overpayment debt.

     (4) If you are not enrolled in a waiver and your request to be enrolled in a waiver is denied, your appeal rights are limited to the decision that you are not eligible to have your request documented in a statewide data base because you do not need ((ICF/MR)) ICF/ID level of care per WAC 388-845-0070, 388-828-8040 or 388-828-8060.

[Statutory Authority: RCW 71A.12.030 and 71A.12.040. 10-02-101, § 388-825-120, filed 1/6/10, effective 2/6/10. Statutory Authority: RCW 71A.12.030. 06-19-037, § 388-825-120, filed 9/13/06, effective 10/14/06. Statutory Authority: RCW 71A.12.030, 71A.12.120. 05-17-135, § 388-825-120, filed 8/19/05, effective 9/19/05. Statutory Authority: RCW 71A.12.030, 71A.10.020 and 2002 c 371. 04-02-014, § 388-825-120, filed 12/29/03, effective 1/29/04. Statutory Authority: RCW 71A.16.010, 71A.16.030, 71A.12.030, chapter 71A.20 RCW, RCW 72.01.090, and 72.33.125. 02-16-014, § 388-825-120, filed 7/25/02, effective 8/25/02; 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.]

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     (a) The child has been determined eligible for DDD services per RCW 71A.10.020(3);

     (b) The child is at least eight years of age and under age eighteen;

     (c) The child is at high risk of institutionalization and/or out-of-home placement; and

     (d) The parents/caregivers have demonstrated they have accessed alternative appropriate and available services to meet the unmet need.

     (2) The enhanced respite services committee will also consider the following factors when reviewing requests for services:

     (a) The child is experiencing school placement disruption and/or a shortened school day due to his/her behavior;

     (b) There is a current family emergency;

     (c) The child has had behavioral incident(s), which resulted in injury to self or others that required more than first aid;

     (d) The child is awake at night, resulting in the child and/or the caregivers receiving less than five hours of uninterrupted sleep per night;

     (e) The child is exhibiting behaviors such as aggression with significant injury, elopement, and challenging repetitive behaviors;

     (f) The child's behavior acuity level is high per WAC 388-828-5640, the ICF/ID score is eligible per WAC 388-828-4400, and the caregiver's risk score is medium, high, or immediate per WAC 388-828-5300; and/or

     (g) The child has assessed needs that exceed the scope of current services and/or is currently not eligible to receive any paid services.

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