Original Notice.

Preproposal statement of inquiry was filed as WSR 00-08-048.

Title of Rule: New chapter 388-865 WAC, Community mental health and involuntary treatment; formerly chapter 388-860 WAC, Juvenile involuntary treatment; chapter 388-861 WAC, Commitment, treatment and/or evaluation of mentally ill persons; and chapter 388-862 WAC, Community mental health programs. This CR-102 is pursuant to a preproposal notice of inquiry (CR-101) filed on March 31, 2000, as WSR 00-08-048, regarding rule making related to chapters 275-54 WAC, Juvenile involuntary treatment; chapter 275-55 WAC, Voluntary admission -- Involuntary commitment, treatment and/or evaluation of mentally ill persons; and chapter 275-57 WAC, Community mental health programs. Pursuant to WSR 00-23-089 filed November 20, 2000, chapters 275-54, 275-55 and 275-57 WAC were renumbered as chapters 388-860, 388-861, and 388-862 WAC, respectively.

Purpose: Integration of administrative rule to be consistent with an integrated mental health system; streamlining rules by eliminating duplication and inconsistency between the rules and waiver/contracts; implementation of changes in chapters 71.05, 71.24 and 71.34 RCW; incorporates department policies; and incorporates some federal Medicaid requirements into rule.

Statutory Authority for Adoption: RCW 71.05.560, 71.24.035 (5)(c), 71.34.800, 9.41.047, 43.20B.020, 43.20B335 [43.20B.335].

Statute Being Implemented: Chapters 71.05, 71.24, and 71.34 RCW.

Summary: A review of the current administrative rules done in compliance with Executive Order 97-02 revealed that there is duplication, and inconsistencies as well as outdated material. The rules have been combined, written in a clearer format, incorporated requirements from recent legislation, and made changes consistent with changes that have occurred within the system.

Reasons Supporting Proposal: Executive order for regulatory improvement.

Name of Agency Personnel Responsible for Drafting: Kathy Burns Peterson, OB-2, Olympia, Washington, (360) 902-0843; Implementation and Enforcement: Darleen Vernon, OB2, Olympia, Washington, (360) 902-0873.

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

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

Explanation of Rule, its Purpose, and Anticipated Effects: The rewriting of these rules were started under the governor's executive order on regulatory improvement. This rule decreases duplication and inconsistencies; creates an integrated rule to be consistent with integrated contracts, and incorporates in fact or by reference the requirements of federal law and waiver, recent state laws, duplicative portions of contract, and division policies.

Proposal Changes the Following Existing Rules: The current three rules have been combined. This means that many sections have been moved, revised and reorganized.

WAC 388-865-0100 Purpose, the purpose statement incorporates the three statutes that are being implemented, and the Title XIX section 1915(b) waiver.

WAC 388-865-0105 What the mental health division does and how it is organized, information only.

WAC 388-865-0110 Access to records of registration, says information must not be shared or released except as specified under RCW 71.05.390.

WAC 388-865-0115 Access to clinical records, gives all the references in law to confidentiality of consumer records.

WAC 388-865-0120 Waiver of a minimum standard of this chapter, no substantial change from current WAC 388-862-0120.

WAC 388-865-0150 Definitions, changes the definition of a mental health professional, and adds the definition for substantial hardship. Many former definitions are defined within the context within which the term is used.

WAC 388-865-0200 Regional support networks (RSNs), lists the programs RSNs administers; adds inpatient that has been in law but not rule.

WAC 388-865-0201 Distribution of available resources, tells how available funds will be distributed to the regional support networks. Some RSNs will receive lesser increases than historically; others will receive more than historically.

WAC 388-865-0203 Distribution formula for state hospital beds, describes the formula for distribution between RSNs of available civil beds in state hospitals - some get more and others get less.

WAC 388-865-0205 Initial certification of a regional support network, puts mental health procedure into rule.

WAC 388-865-0215 Consumer eligibility and payment for services, puts current practice into rule.

WAC 388-865-0229 Inpatient services, puts policy about single bed certification into rule.

WAC 388-865-0230 Community support services, adds counseling and psychotherapy services and day treatment services to the list of community support services. These are in current law, but not current rule.

WAC 388-865-0235 Residential and housing services, adds a service required of the regional support network by current law, but not current rule. Requires regional support networks to assure treatment to and to inform people in long-term residential care of their long-term care rights.

WAC 388-865-0240 Consumer employment services, adds a service required of the regional support network by current law, but not current rule.

WAC 388-865-0250 Ombuds services, expands the scope of the ombuds office and requires a toll-free, independent line; eliminates the requirement for the mental health division, regional support network, or prepaid health plan to include representatives of consumer and family advocates when revising the terms of the contract regarding ombuds services.

WAC 388-865-0255 Consumer grievance process, incorporates new rules about a consumer's right to continue to receive services if they contest termination of services.

WAC 388-865-0260 Mental health professionals and specialists, puts current practice into rule.

WAC 388-865-0265 Mental health professional -- Exception, puts mental health division procedure into rule; requires the person who receives the exception to be in the process of meeting the minimum requirements; adds a process for small businesses as defined in chapter 19.85 RCW to avoid any disproportionate economic impact.

WAC 388-865-0280 Quality management process, puts requirements from current contract into rule.

WAC 388-865-0282 Quality review teams, puts requirements from current contract into rule.

WAC 388-865-0286 Coordination with a mental health prepaid health plan, new, will only apply if HCFA rescinds an exception currently in effect for the Mental Health Division.

WAC 388-865-0300 Mental health prepaid health plans, puts requirements from waiver/contract into rule.

WAC 388-865-0305 Regional support network contracting as a mental health prepaid health plan, puts requirements from waiver/contract into rule.

WAC 388-865-0307 Distribution of funds, places new formula into rule; some will get more, others will get less.

WAC 388-865-0310 Mental health prepaid health plans -- Minimum standards, puts requirements from waiver/contract into rule; and where possible references regional support network requirements to avoid duplication.

WAC 388-865-0315 Governing body, puts requirements from waiver/contract into rule.

WAC 388-865-0320 Utilization management, puts requirements from waiver/contract into rule.

WAC 388-865-0325 Risk management, puts requirements from waiver/contract into rule.

WAC 388-865-0330 Marketing/education of mental health services, puts requirements from waiver/contract into rule.

WAC 388-865-0340 Consumer disenrollment, puts requirements from waiver/contract into rule, and puts mental health procedure into rule.

WAC 388-865-0345 Choice of primary care provider, puts current DSHS practice into rule, consistent with HCFA rules.

WAC 388-865-0350 Mental health screening for children, puts requirements from waiver/contract into rule.

WAC 388-865-0360 Monitoring of mental health prepaid health plans, puts current practice into rule.

WAC 388-865-0363 Coordination with the regional support network, new, will only apply if HCFA rescinds an exception currently in effect for the Mental Health Division.

WAC 388-865-0365 Suspension, revocation, limitation or restriction of a contract, puts requirements from waiver/contract into rule.

WAC 388-865-0405 Competency requirements for staff, incorporates rules from other regulatory agencies.

WAC 388-865-0410 Consumer rights, clarifies the consumer's right to make an advance directive, consistent with federal law.

WAC 388-865-0420 Admission and intake evaluation, adds a consumer report of culture/cultural history.

WAC 388-865-0425 Individual service plan, incorporates minimum state and federal requirements so providers will be in compliance with standards of both systems.

WAC 388-865-0430 Clinical record, requires that a copy of the advance directive, power of attorney or letters of guardianship be kept in the clinical record, if provided by the consumer.

WAC 388-865-0435 Consumer access to their clinical record, limits the rate for copying consistent with chapter 70.02 RCW.

WAC 388-865-0436 Clinical record access procedures, requires the agency to develop policies and procedures to ensure information about consumers is protected and released only in accordance with law.

WAC 388-865-0440 Availability of consumer information, requirement from waiver/contract moved to rules.

WAC 388-865-0452 Emergency crisis intervention services, adds requirements for policies and procedures; use of mental health specialists; allows the provision of emergency triage services at a level less than inpatient services.

WAC 388-865-0454 Provider of crisis telephone services only, new section that applies only sections of rule that are necessary when only these services are provided.

WAC 388-865-0458 Psychiatric treatment, including medication supervision, slight change in the name of the service, to be consistent with the law.

WAC 388-865-0460 Counseling and psychotherapy services, new licensable service, consistent with the law.

WAC 388-865-0462 Day treatment services, new licensable service, consistent with the law.

WAC 388-865-0466 Community support outpatient certification, certification standards from the current outpatient section of chapter 388-860 WAC minus standards that are already required for licensure.

WAC 388-865-0468 Emergency crisis intervention services certification, certification standards from the current emergency services section of chapter 388-860 WAC minus standards that are already required for licensure.

WAC 388-865-0470 The process for initial licensing of service providers, a shortened version of current rule.

WAC 388-865-0474 Fees for community support service provider licensure, moved from a rule so it would be more accessible to service providers.

WAC 388-865-0476 Licensure based on deemed status, expands on current rule and practice.

WAC 388-865-0484 Process to certify providers of involuntary services, eliminates duplicative review of similar requirements between licensing and certification.

WAC 388-865-0501 Certification based on deemed status, addition that allows deeming for certification under certain circumstances.

WAC 388-865-0502 Single bed certification, places current procedure into rule.

WAC 388-865-0524 Clinical record, requires that a copy of the advance directive, power of attorney or letters of guardianship be kept in the clinical record, if provided by the consumer.

WAC 388-865-0530 Competence requirements for staff, incorporates rules from other regulatory agencies; requires that clinical supervisors meet the qualifications of mental health professionals or specialists.

WAC 388-865-0535 - 388-865-0540, fees for evaluation and treatment facility certification, moved from another WAC to be more accessible to providers.

WAC 388-865-0545 Use of seclusion and restraint procedures -- Adults, deletes "unruly behavior" as an allowable reason to use restraints or seclusion; requires policies and procedures about the use of restraints and seclusion; requires that the consumer must be informed of the reasons for seclusion or restraint and told what specific behaviors are required to gain release from restraint and seclusion.

WAC 388-865-0546 Use of seclusion and restraint procedures -- Children, deletes "unruly behavior" as a criteria for use of seclusion and restraint.

WAC 388-865-0557 Rights related to antipsychotic medication, new rules required by RCW 71.05.215 which requires providers to develop protocols for administering medication involuntarily.

WAC 388-865-0600 - 388-865-0620, as the result of new legislation in chapter 71.05 RCW, new rules about sharing information between mental health providers and Department of Corrections.

No small business economic impact statement has been prepared under chapter 19.85 RCW. Division staff have analyzed the proposed rule amendments and conclude that no new costs will be imposed on the small businesses affected by the amendments. The preparation of a comprehensive small business economic impact statement is not required. For information contact (360) 902-0830.

RCW 34.05.328 applies to this rule adoption. Portions of this rule making do meet the definition of significant legislative rules. An analysis has been prepared. Please contact Kelly Cooper, (360) 664-6094 to receive a copy.

Hearing Location: Blake Office Park (behind Goodyear Courtesy Tire), 4500 10th Avenue S.E., Rose Room, Lacey, WA 98503, on May 22, 2001, at 10:00 a.m.

Assistance for Persons with Disabilities: Contact Kelly Cooper, DSHS Rules Coordinator, by May 15, 2001, phone (360) 664-6094, TTY (360) 664-6178, e-mail coopeKD@dshs.wa.gov.

Submit Written Comments to: Identify WAC Numbers, Kelly Cooper, DSHS Rules Coordinator, Rules and Policies Assistance Unit, P.O. Box 45850, Olympia, WA 98504-5850, fax (360) 664-6185, by May 22, 2001.

Date of Intended Adoption: No sooner than May 23, 2001.

March 21, 2001

Susan Bush

for Charles Hunter, Director

Administrative Services Division

Reviser's note: The material contained in this filing exceeded the page-count limitations of WAC 1-21-040 for appearance in this issue of the Register. It will appear in the 01-09 issue of the Register.

Washington State Code Reviser's Office