A regulation allowing the Department of Social and Health Services (DSHS) to transfer people from the Fircrest School, in Shoreline, to other state institutions without parental or guardian consent is being made permanent.
The new status of the regulation will go into effect Aug. 20, although the rule has been enforced since Dec. 24 when it was initially adopted as an emergency rule. It is an amendment to the Washington Administrative Code (WAC) that lists under what circumstances people with developmental disabilities can be transferred, even if guardians or parents object.
The change in status of the emergency rule has not gone unnoticed by Fircrest advocates, who say the regulation is out of compliance with federal regulations.
Friends of Fircrest member Jim Hardman, who is a guardian for five Fircrest residents who have been moved to the Rainier School, said the federal regulations require a closing date be announced to Medicare and Medicaid Services (CMS) in order to transfer residents. Since there is no closing date for the Fircrest School, he said DSHS is out of compliance for moving residents without a therapeutic basis. He suspects the permanent rule will be reversed at some point by CMS.
“The feds require that a closing date be announced,” Hardman said. “There is no closing date.”
Hardman also added that federal regulations require consent to share medical files from one residential habilitation center (RHC) to another.
“They don’t intend to seek consent,” Hardman said about the medical files for the residents he has guardianship of. “No one asked if I consented to those medical files being shared with people.”
The permanent regulation adds two more circumstances to the WAC, partial closure of an RHC and closure of an RHC, to a list that permits the transfer of residents. Other circumstances previously adhered to are medical reasons, a change in housing needs, the welfare of other residents and the request of a parent or guardian.
Linda Johnson, office chief with the Division of Developmental Disabilities in DSHS, said the emergency rule was initially adopted to clarify moves between RHCs, not just community placement.
“We wanted to clarify that moving from one RHC to another was different than moving to the community,” Johnson said.
Johnson said residents’ health is still taken into consideration before a move is scheduled, and each resident has an interdisciplinary team to ensure that all needs are addressed before a move occurs.
If residents are administratively moved, they still have an opportunity to request an informal administrative review with a third party, Johnson said. This would allow them to present information or facts about the person’s health and safety they believe would be detrimental to their move.
Johnson said no move would be postponed indefinitely, but delays could occur if someone was ill or had a health condition that would favor a delay in transferring them to another home.
Members of Friends of Fircrest and Washington State Federation of State Employees previously filed a lawsuit Dec. 18, in King County Superior Court on behalf of three Fircrest residents. The lawsuit seeks a permanent injunction to keep the school open and asks that residents not be moved without their consent. A trial is scheduled for May 2005. The lawsuit is not affected by the permanency of the rule, other than some additional claims being made, said Hardman.
Hardman also previously filed a petition to the Governor, in an attempt to reverse the rule adopted by DSHS officials Christmas Eve, which allows residents to be forcibly transferred to other RHCs. The petition was turned down, however, because it was ruled to no longer be timely. According to state law, petitions must be submitted within seven days after the rule is adopted. Because the rule was adopted on Christmas Eve, the petition Hardman filed was too late.
Hardman said DSHS claims residents are doing well after moving from the Fircrest School to Rainier, yet testimony of family and guardians at a July 6 public hearing in Lacey, for the purpose of gathering input on the emergency rule, indicates that several residents are having difficulty adjusting to their new surroundings.
Johnson said that at the July 6 public hearing, all public testimony was from people who were not in support of the change. She said public input was gathered for 30 days, both verbal and written. The Regulatory and Policy Administration Unit at DSHS gathered all input and reviewed it, she said.
DSHS officials say the change is part of the department’s efforts to implement the Legislature’s direction in the 2003-2005 state budget to downsize the Fircrest School. The budget, however, does not state that the Fircrest School will close. This decision would have to be made by the Legislature.
To date, two cottages at Fircrest are closed and a third cottage is scheduled to close in September and a fourth by March.
In addition to the Fircrest School, DSHS operates four other RHCs, including Rainier and Yakima Valley schools, Frances Haddon Morgan Center and Lakeland Village. Fircrest’s population, by March 2005, is set to be reduced from 253 residents to less than 200, according to DSHS officials.
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