Effective Date of Rule: May 1, 2010.

     Purpose: The department is amending WAC 388-448-0030 and 388-448-0040 in order to clarify and align the medical evidence rules with the intent of RCW 74.04.005.

     Citation of Existing Rules Affected by this Order: Amending WAC 388-448-0030 and 388-448-0040.

     Statutory Authority for Adoption: RCW 74.08.090, 74.04.005, 74.04.050, 74.04.055, and 74.04.057.

      Adopted under notice filed as WSR 10-04-110 on February 3, 2010.

     Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 0, Repealed 0.

     Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.

     Number of Sections Adopted on the Agency's Own Initiative: New 0, Amended 0, Repealed 0.

     Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 2, Repealed 0.

     Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0;      Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 0, Amended 2, Repealed 0.

     Date Adopted: March 30, 2010.

Katherine I. Vasquez

Rules Coordinator

     (1) Objective evidence for physical impairments means:

     (a) ((For physical impairment:

     (i))) Laboratory test results;

     (((ii))) (b) Pathology reports;

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

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

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

     (((vi))) (f) Other medical history and physical reports related to your current impairments.

     (((b) For mental impairment:

     (i) Examination results including:

     (A))) (2) Objective evidence for mental impairments means:

     (a) Clinical interview observations, including objective mental status exam results and interpretation((; and)).

     (((B))) (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))) (c) Hospital, outpatient and other treatment records related to your current impairments.

     (d) Testing results, if any, including:

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

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

     (((2) To be complete,)) Medical evidence sufficient for an incapacity determination must be from a medical professional described in WAC 388-448-0020 and must include:

     (a) A diagnosis for the impairment, or impairments, based on an examination performed within twelve months of application;

     (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) Documentation of how the impairment, or impairments, is currently limiting your ability to work based on an examination performed within the ninety days of the date of application or the forty-five days before the month of incapacity review;; and

     (d) 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))) (4) 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))) (5) We don't use symptoms related to substance abuse or a diagnosis of addiction or chemical dependency when determining incapacity.

     (6) We consider diagnoses that are independent of addiction or chemical dependency when determining incapacity.

     (7) We determine you have a diagnosis that is independent of addiction or chemical dependency if the impairment will persist at least ninety days after you stop using drugs or alcohol.

     (8) If you ((cannot get)) can't obtain medical evidence of an impairment that prevents you from working 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))) (9) 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.

     (10) We can't use a statement from a medical professional to determine that you are incapacitated unless the statement is supported by objective medical evidence.

[Statutory Authority: RCW 74.08.090, 74.04.005, and 2003 1st sp.s. c 10. 04-07-140, § 388-448-0030, filed 3/22/04, effective 5/1/04. 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.]

     Reviser's note: The typographical errors in the above section occurred in the copy filed by the agency and appear in the Register pursuant to the requirements of RCW 34.08.040.
AMENDATORY SECTION(Amending WSR 00-16-113, filed 8/2/00, effective 9/1/00)

WAC 388-448-0040   PEP step I -- Review of medical evidence required for eligibility determination.   When we receive your medical evidence, we review it to see if it is ((complete and)) sufficient to decide whether your circumstances ((match GAU program)) meet incapacity requirements.

     (1) We require a written medical report to determine incapacity. The report must:

     (a) Contain sufficient information as described under WAC 388-448-0030;

     (b) Be written by an authorized medical professional described in WAC 388-448-0020;

     (c) Document the existence of a potentially incapacitating condition; and

     (d) Indicate an impairment is expected to last ninety days or more from the application date.

     (2) If the information received ((is not)) isn't clear, we may require more information before we decide your ability to be gainfully employed. As examples, we may require you to get more medical tests or be examined by a medical specialist.

     (3) We deny incapacity ((when)) if:

     (a) There is only one impairment ((with a)) and the severity rating is less than three;

     (b) A reported impairment ((is not)) isn't expected to last ninety days (twelve weeks) or more from the date of application;

     (c) ((The practitioner is not able to determine that the physical or mental impairment would remain incapacitating after at least sixty days of abstinence from alcohol and drugs)) The only impairment supported by objective medical evidence is drug or alcohol addiction; or

     (d) We ((do not)) don't have clear and objective medical evidence to approve incapacity.

[Statutory Authority: RCW 74.04.050, 74.04.055, 74.04.057, 74.08.090. 00-16-113, § 388-448-0040, filed 8/2/00, effective 9/1/00.]

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