WSR 04-07-140

PERMANENT RULES

DEPARTMENT OF

SOCIAL AND HEALTH SERVICES
(Economic Services Administration)

[ Filed March 22, 2004, 4:24 p.m. , effective May 1, 2004 ]

Date of Adoption: March 15, 2004.

Purpose: To implement a change in RCW 74.04.005 (6)(g) adopted by the legislature that changes the burden of proof from the department to the recipient for continuing general assistance benefits based on incapacity. See chapter 10, Laws of 2003 1st sp.s. Other changes clarify the requirements a person must meet to be considered incapacitated by the department and while waiting for the Social Security Administration to decide on eligibility for federal disability benefits. When effective, these permanent rules will replace emergency rules filed as WSR 04-03-015.

Citation of Existing Rules Affected by this Order: Repealing WAC 388-448-0170 and 388-448-0190; and amending WAC 388-448-0001, 388-448-0010, 388-448-0020, 388-448-0030, 388-448-0120, 388-448-0160, 388-448-0180, 388-448-0200, and 388-448-0210.

Statutory Authority for Adoption: RCW 74.08.090, 74.04.005.

Other Authority: Chapter 10, Laws of 2003 1st sp.s.

Adopted under notice filed as WSR 04-02-048 on January 5, 2004.

Changes Other than Editing from Proposed to Adopted Version: WAC 388-448-0160(6) changed to ensure current evidence is used to review case before adverse action to close for prior error.

As a result of comments received, WAC 388-448-0160 was revised. The text in the left of the table is the proposed subsection (6), and on the right is subsection (6) as adopted:


Proposed WAC 388-448-0160 WAC 388-448-0160 as Adopted
(6) We stop assistance before the end of your incapacity period when we discover that the previous incapacity decision was made: (6) Even if your condition has not improved, you are not eligible for general assistance when:
(a) Using faulty or insufficient information; or

(b) Against the rule in effect at the time.

(a) We get current medical evidence that does not meet progressive evaluation process criteria in WAC 388-448-0035 through 388-448-0110; and

(b) Our prior decision that your incapacity met the requirements was incorrect because:

(i) The information we had was incorrect or not enough to show incapacity; or
(ii) We did not apply the rules correctly to the information we had at the time.

Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 1, Repealed 2.

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 8, 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 0, Amended 9, Repealed 2.
Effective Date of Rule: May 1, 2004.

March 15, 2004

Brian H. Lindgren, Manager

Rules and Policies Assistance Unit

3356.6
AMENDATORY SECTION(Amending WSR 00-15-018, filed 7/10/00, effective 9/1/00)

WAC 388-448-0001   ((Establishing)) What are the incapacity requirements for general assistance ((unemployable.))?   For the purposes of this chapter, "we" and "us" refer to the department of social and health services. "You" means the applicant or recipient. ((In order)) "GA" means the general assistance program. For you to receive general assistance ((unemployable (GAU))) (GA) program benefits, we must ((first)) determine ((if)) you are incapacitated.

"Incapacitated" means that you cannot be gainfully employed as a result of a physical or mental impairment that is expected to continue for at least ninety days from the date you apply.

"Physical impairment" means a diagnosable physical illness. "Mental impairment" means a diagnosable mental disorder. We exclude any diagnosis of or related to alcohol or drug abuse or addiction.

(1) We determine you are incapacitated if you are:

(a) Eligible for payments based on Social Security Administration (SSA) disability criteria;

(b) Eligible for services from the division of developmental disabilities (DDD);

(c) Diagnosed as ((mentally retarded)) having mental retardation based on a full scale score of seventy or lower on the Wechsler adult intelligence scale (WAIS);

(d) At least ((sixty-five)) sixty-four years old and seven months;

(e) Eligible for long-term care services from aging and ((adult)) disability services administration; or

(f) Approved ((by)) through the progressive evaluation process (PEP).

(2) We consider you to be incapacitated for ninety days ((following your release from:

(a) An inpatient psychiatric treatment facility if:

(i) You directly participate in outpatient mental health treatment; and

(ii) The release from in-patient treatment was not against medical advice)) after:

(a) You are released from inpatient treatment for a mental impairment if:

(i) The release from inpatient treatment was not against medical advice; and

(ii) There is no break in your participation between inpatient and outpatient treatment of your mental impairment.

(b) You are released from a medical institution where you received long-term care services from the aging and ((adult)) disability services administration.

(c) The Social Security Administration stops your Supplemental Security Income payments because you are not a citizen.

[Statutory Authority: RCW 74.04.057, 74.08.090. 00-15-018, 388-448-0001, filed 7/10/00, effective 9/1/00. Statutory Authority: RCW 74.04.050, 74.04.055, 74.04.057 and 74.08.090. 98-16-044, 388-448-0001, filed 7/31/98, effective 9/1/98.]


AMENDATORY SECTION(Amending WSR 00-16-113, filed 8/2/00, effective 9/1/00)

WAC 388-448-0010   How do we decide if you are incapacitated((.))?   When you apply for ((general assistance unemployable (GAU))) GA program benefits, you must provide medical evidence to us to show that you are unable to work. ((If we say that you are "incapacitated," it means that you are incapable of gainful employment as a result of a physical or mental impairment that is expected to continue for ninety days or more from the date of application.

(1))) If you are gainfully employed at the time of your application for ((GAU)) GA, we deny incapacity. (("Perform)) "Gainful employment" means you ((can perform)) are performing, in a regular and predictable manner, an activity usually done for pay or profit.

(1) We do not consider work to be gainful employment when you are working:

(a) ((Working)) Under special conditions((, like)) that go beyond the employer providing reasonable accommodation, such as in a sheltered workshop we have approved; or

(b) ((Working)) Occasionally or part-time ((if your medical condition)) because your impairment limits the hours you ((can)) are able to work compared to unimpaired workers in the same job as verified by your employer.

(2) We decide if you are ((able to perform gainful employment)) incapacitated when:

(a) ((We receive an application for)) You apply for GA benefits. We may waive this decision if ((medical documentation requirements are waived under)) we use the criteria in WAC 388-448-0001 except the PEP to determine you are incapacitated;

(b) You become employed; ((or))

(c) You obtain work skills by completing a training program; or

(d) We get new information that indicates you may be employable.

(3) Unless ((medical documentation requirements are waived under)) you meet the other incapacity criteria in WAC 388-448-0001, we ((determine if incapacity exists using the progressive evaluation process (PEP). When we receive your medical evidence, we use the PEP to decide if there is a medical impairment that prevents you from being gainfully employed. The PEP is a sequence of seven-steps)) decide incapacity by applying the progressive evaluation process (PEP) to the medical evidence that you provide that meets WAC 388-448-0030. The PEP is the sequence of seven steps described in WAC 388-448-0035 through 388-448-0110.

(4) You are not eligible for ((GAU)) GA benefits if you are incapacitated only because of alcoholism or drug addiction. If you have a physical or mental impairment and you are impaired by alcohol or drug addiction, we decide if you are eligible for general assistance. If you qualify for both ((GAU)) GA and the ADATSA Shelter program, you may choose either program.

(5) In determining incapacity, we consider only your ability to perform basic work-related activities. "Basic work-related activities" are activities that anyone would be required to perform in a work setting. They consist of: Sitting, standing, walking, lifting, carrying, handling, seeing, hearing, communicating, and understanding and following instructions.

[Statutory Authority: RCW 74.04.050, 74.04.055, 74.04.057, 74.08.090. 00-16-113, 388-448-0010, filed 8/2/00, effective 9/1/00.]


AMENDATORY SECTION(Amending WSR 01-14-059, filed 6/29/01, effective 8/1/01)

WAC 388-448-0020   ((How and from whom you can get)) Which health professionals can I go to for medical evidence ((for incapacity determination.))?   ((Before we can decide if you are eligible for GAU, you must give us medical evidence that meets the requirements in WAC 388-448-0030. Medical evidence provides us with the details of your impairment and how it affects your ability to be gainfully employed. If you cannot get medical evidence without cost to you and you are otherwise eligible according to WAC 388-400-0025, we will pay the fees or other expenses based on our published policies and payment limits.))

We accept medical evidence from ((the)) these sources ((listed below)):

(1) For a physical impairment, ((we only accept reports from the following licensed medical professionals as primary evidence)) a health professional licensed in Washington state or where the examination was performed:

(a) A physician((;)), which for GA program purposes, includes:

(i) Medical doctor (M.D.);

(ii) Doctor of osteopathy (D.O.);

(iii) Doctor of optometry (O.D.) to evaluate visual acuity impairments;

(iv) Doctor of podiatry (D.P.) for foot disorders; and

(v) Doctor of dental surgery (D.D.S.) or doctor of medical dentistry (D.M.D.) for tooth abscesses or temporomandibular joint (TMJ) disorders.

(b) An advanced registered nurse practitioner (ARNP) ((in)) for physical impairments that are within the ARNP's area of certification to treat;

(c) The chief of medical administration of the Veterans' Administration, or their designee, as authorized in federal law; or

(d) A physician assistant when the report is co-signed by the supervising physician.

(2) For a mental impairment, ((we only accept reports from one of the following licensed)) professionals ((as primary evidence)) licensed in Washington state or where the examination was performed:

(a) A psychiatrist;

(b) A psychologist;

(c) An advanced registered nurse practitioner ((when)) certified in psychiatric nursing; or

(d) At our discretion:

(i) A person ((who provides)) identified as a mental health ((services in a community mental health services agency and meets the minimum mental health)) professional within the regional support network mental health treatment system provided the person's training and qualifications ((set by them, which consist of)) at a minimum include having a Master's degree and two years of mental health treatment experience; or

(((e))) (ii) The physician who is currently treating you for a mental ((disorder)) impairment.

(3) "Supplemental medical evidence" means ((a report from a practitioner that can be used to support)) information from a health professional not listed in subsection (1) or (2) of this section and who can provide supporting medical evidence ((given)) for impairments identified by any of the ((practitioners)) professionals listed in subsections (1) ((and)) or (2) of this section. We ((accept)) include as supplemental medical evidence ((reports from)) sources:

(a) A ((practitioner who is providing)) health professional who has conducted tests on or provides on-going treatment to you, such as a physical therapist, chiropractor, nurse, physician assistant; ((or))

(b) Workers at state institutions and agencies ((that)) who are not health professionals and are providing or have provided medical or health-related services to you; or

(c) Chemical dependency professionals (CDPs) when requesting information on the effects of alcohol or drug abuse.

[Statutory Authority: RCW 74.04.050, 74.04.055, 74.04.057, 74.04.510, and 74.08.090. 01-14-059, 388-448-0020, filed 6/29/01, effective 8/1/01. Statutory Authority: RCW 74.04.050, 74.04.055, 74.04.057, 74.08.090. 00-16-113, 388-448-0020, filed 8/2/00, effective 9/1/00.]


AMENDATORY SECTION(Amending WSR 00-16-113, filed 8/2/00, effective 9/1/00)

WAC 388-448-0030   ((The kind of)) What medical evidence ((you)) do I need to provide ((for determination of incapacity.))?   You must provide medical evidence that clearly explains ((what physical or mental health problem you have that incapacitates you. "Impairment" means any diagnosable physical or mental condition except alcoholism or drug addiction. The following describes how we decide if the medical evidence that you provide regarding your impairment meets the requirements:

(1) We only accept written medical evidence. It must contain clear, objective medical documentation that includes:

(a) A diagnosis for the incapacitating condition;

(b) The effect of the condition on your ability to perform work-related activities; and

(c) Relevant medical history and sufficient medical documentation to support conclusions of incapacity.

(2) The medical evidence must be based on an exam within the last ninety days.

(3) When making an incapacity decision, we do not use your report of symptoms as evidence unless medical findings show there is a medical condition that could reasonably be expected to produce the symptoms reported. In those cases, you must provide us with clear and objective medical information, including observation by the medical practitioner and relevant medical history that supports conclusions about:

(a) The existence and persistence of the symptom(s); and

(b) Its effect on your ability to perform basic work activities.

(4))) if you have an impairment and how that impairment prevents you from being capable of gainful employment. Medical evidence must be in writing and be clear, objective and complete.

(1) Objective evidence means:

(a) For physical impairment:

(i) Laboratory test results;

(ii) Pathology reports;

(iii) Radiology findings including results of X-rays and computer imaging scans;

(iv) Clinical finding, including but not limited to ranges of joint motion, blood pressure, temperature or pulse; and observations from physical examination; or

(v) Hospital history and physical reports and admission and discharge summaries; or

(vi) Other medical history and physical reports.

(b) For mental impairment:

(i) Examination results including:

(A) Clinical interview observations, including mental status exam results and interpretation; and

(B) Explanation of how examination findings meet the clinical and diagnostic criteria of the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM).

(ii) Testing results, if any, including:

(A) Description and interpretation of tests of memory, concentration, cognition or intelligence; or

(B) Interpretation of medical tests to identify or exclude a connection between the mental impairment and physical illness.

(2) To be complete, medical evidence must include:

(a) Diagnosis for the impairment;

(b) A clear description of how the impairment relates to your ability to perform the work-related activities listed in WAC 388-448-0010(5) including signs and observations of drug or alcohol abuse and whether any limitations on ability to perform work-related activities would continue after sixty days of abstinence from use of drugs or alcohol;

(c) Facts in addition to objective evidence to support the medical provider's opinion that you are unable to be gainfully employed, such as proof of hospitalization; and

(d) Based on an examination done within the ninety days of the date of application or the forty-five days prior to the month of incapacity review.

(3) When making an incapacity decision, we do not use your report of symptoms as evidence unless objective evidence shows there is an impairment that could reasonably be expected to produce those symptoms.

(4) If you cannot get medical evidence without cost to you and you meet the eligibility conditions other than incapacity in WAC 388-400-0025, we pay the costs to obtain objective evidence based on our published payment limits and designated fee schedules.

(5) We decide incapacity based solely on the objective information we receive. We are not obligated to accept a decision that you are incapacitated or unemployable made by another agency or person.

[Statutory Authority: RCW 74.04.050, 74.04.055, 74.04.057, 74.08.090. 00-16-113, 388-448-0030, filed 8/2/00, effective 9/1/00.]


AMENDATORY SECTION(Amending 01-14-059, filed 6/29/01, effective 8/1/01)

WAC 388-448-0120   How we decide how long you are incapacitated.   We ((use the medical evidence and expected length of recovery from the incapacitating condition to decide the length of time you are eligible for GAU as follows:

(1) If you are eligible for GAU, a maximum of twelve months; or

(2) If we decide you are eligible for general assistance expedited Medicaid (GAX), a maximum of thirty-six months from the date of the latest incapacity approval)) decide how long you are incapacitated, up to the maximum period set by WAC 388-448-0160, using medical evidence on the expected length of time needed to heal or recover from the incapacitating disorder(s).

[Statutory Authority: RCW 74.04.050, 74.04.055, 74.04.057, 74.04.510, and 74.08.090. 01-14-059, 388-448-0120, filed 6/29/01, effective 8/1/01. Statutory Authority: RCW 74.04.050, 74.04.055, 74.04.057, 74.08.090. 00-16-113, 388-448-0120, filed 8/2/00, effective 9/1/00.]


AMENDATORY SECTION(Amending WSR 00-16-113, filed 8/2/00, effective 9/1/00)

WAC 388-448-0160   ((Review of your incapacity.)) When do my general assistance benefits end?   (1) ((In order to review your incapacity, we must have sufficient written medical information based on an examination within the last sixty days. We may also require information about your progress with required treatment or agency referrals according to WAC 388-448-0130.

(2) We cannot extend GAU eligibility beyond the current eligibility end date if we do not receive current medical evidence that we decide is enough to show that you continue to be incapacitated)) The maximum period of eligibility for general assistance is twelve months before we must review additional medical evidence. We use medical evidence and the expected length of time before you are capable of gainful employment to decide when your benefits will end.

(2) Your benefits stop at the end of your incapacity period unless you provide additional medical evidence that demonstrates during your current incapacity period that there was no material improvement in your impairment. No material improvement means that your impairment continues to meet the progressive evaluation process criteria in WAC 388-448-0010 through 388-448-0110, excluding the requirement that your impairment(s) prevent employment for ninety days.

(3) Additional medical evidence must meet all of the criteria defined in WAC 388-448-0030.

(4) We use additional medical evidence received after your incapacity period had ended when:

(a) The delay was not due to your failure to cooperate; and

(b) We receive the evidence within thirty days of the end of your incapacity period; and

(c) The evidence meets the progressive evaluation process criteria in WAC 388-448-0010 through 388-448-0110.

(5) You must provide information about your cooperation and progress with treatment or agency referrals we required according to WAC 388-448-0130.

(6) Even if your condition has not improved, you are not eligible for general assistance when:

(a) We get current medical evidence that does not meet the progressive evaluation process criteria in WAC 388-448-0035 through 388-448-0110; and

(b) Our prior decision that your incapacity met the requirements was incorrect because:

(i) The information we had was incorrect or not enough to show incapacity; or

(ii) We did not apply the rules correctly to the information we had at that time.

[Statutory Authority: RCW 74.04.050, 74.04.055, 74.04.057, 74.08.090. 00-16-113, 388-448-0160, filed 8/2/00, effective 9/1/00.]


AMENDATORY SECTION(Amending WSR 01-14-059, filed 6/29/01, effective 8/1/01)

WAC 388-448-0180   How ((and when)) do we redetermine your eligibility ((if)) when we decide you are eligible for ((GAX.)) general assistance expedited Medicaid (GAX)?   ((When we decide you are eligible for GAX, we may extend your incapacity period up to thirty-six months from the date of the last incapacity decision without requesting additional medical documentation.))

(1) The maximum period of eligibility for GAX is twelve months before we must review additional medical evidence. If you remain on GAX at the end of the ((thirty-six-month)) twelve-month period, we determine your eligibility using current medical evidence.

(2) If your application for SSI is denied, and the denial is upheld by an SSI/SSA administrative hearing before the end of the ((thirty-six-month)) twelve-month incapacity period, we change your program eligibility from GAX to ((GAU)) GA and adjust the incapacity review date to be sixty days after the administrative hearing date.

[Statutory Authority: RCW 74.04.050, 74.04.055, 74.04.057, 74.04.510, and 74.08.090. 01-14-059, 388-448-0180, filed 6/29/01, effective 8/1/01. Statutory Authority: RCW 74.04.050, 74.04.055, 74.04.057, 74.08.090. 00-16-113, 388-448-0180, filed 8/2/00, effective 9/1/00.]


AMENDATORY SECTION(Amending WSR 01-14-059, filed 6/29/01, effective 8/1/01)

WAC 388-448-0200   ((Eligibility for)) Can I get general assistance ((unemployable pending SSI eligibility.)) while waiting for Supplemental Security Income (SSI)?   ((If we approve you for GAX, benefits are authorized through the month SSI payments begin if you:))

(1) ((Apply for SSI, follow through with your application, and do not withdraw your application;

(2) Agree to assign the initial or reinstated SSI payment to DSHS as provided under WAC 388-448-0210; and

(3) Are otherwise eligible according to WAC 388-400-0025)) You may receive general assistance benefits while you are waiting to receive Social Security Supplemental Security Income (SSI) benefits only when you:

(a) Have filed your SSI application with the Social Security Administration (SSA), follow through with SSA directions and requirements to process your application including keeping all interview and consultative examination appointments, and do not withdraw your application;

(b) Agree to assign the initial or reinstated SSI payment to us provided under WAC 388-448-0210;

(c) Are otherwise eligible according to WAC 388-400-0025; and

(d) Meet incapacity criteria listed in WAC 388-448-0001.

(2) When we obtain certification that you are likely to qualify for SSI, we also approve categorical needy medical coverage under WAC 388-505-0110.

[Statutory Authority: RCW 74.04.050, 74.04.055, 74.04.057, 74.04.510, and 74.08.090. 01-14-059, 388-448-0200, filed 6/29/01, effective 8/1/01. Statutory Authority: RCW 74.04.050, 74.04.055, 74.04.057, 74.08.090. 00-16-113, 388-448-0200, filed 8/2/00, effective 9/1/00.]


AMENDATORY SECTION(Amending WSR 00-16-113, filed 8/2/00, effective 9/1/00)

WAC 388-448-0210   ((Assignment and recovery of)) What is interim assistance((.)) and how do I assign it to you?   ((You can get)) The general assistance and SSI programs both provide cash assistance to meet your basic needs ((from only one government source at a time)). You cannot receive this assistance for the same time period from both programs. When you are approved for or reinstated on SSI, you may receive a ((payment going back to the date you applied for SSI. This means you are being paid a)) back payment ((for your basic needs)). When ((you have received GAU during that time period, the amount paid to you in the form of GAU must be reimbursed to the state)) we made GA payments to you or on your behalf for the same time period, you must assign your interim assistance to repay us.

(1) "Assign" means that you sign a written authorization for the Social Security Administration (SSA) ((will pay DSHS directly from your reimbursement amount. The assignment will be up to the amount of)) to send the SSI back payment to us. We will deduct the interim assistance we ((provide)) provided to you.

(2) "Interim assistance" means the ((state)) GA funds we ((provide to you to meet basic needs)) paid to you or on your behalf during:

(a) The time between your SSI application date and the month recurring SSI payments begin; or

(b) The period your SSI payments were suspended or terminated, and later reinstated ((for that period)).

(3) We pay up to twenty-five percent of the interim assistance reimbursement that we receive from the SSA to the attorney who ((has)) successfully represented you in your effort to receive SSI.

[Statutory Authority: RCW 74.04.050, 74.04.055, 74.04.057, 74.08.090. 00-16-113, 388-448-0210, filed 8/2/00, effective 9/1/00.]


REPEALER

     The following sections of the Washington Administrative Code are repealed:
WAC 388-448-0170 Termination requirement -- How we determine you are no longer incapacitated.
WAC 388-448-0190 Reinstating your eligibility after termination due to lack of medical evidence.

Legislature Code Reviser 

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Washington State Code Reviser's Office