WASHINGTON STATE REGISTER

WSR 03-24-107

OFFICE OF THE GOVERNOR

[ Filed December 3, 2003, 11:19 a.m. ]

December 1, 2003

Samuel P. Harvey

P.O. Box 213

Bremerton, WA 98337

Re: Appeal of the September 30, 2003, denial by the Department of Labor and Industries (the "department") of that certain petition to amend WAC 296-19A regarding vocational rehabilitation, dated October 16, 2003 (the "Petition").

Dear Mr. Harvey:

Pursuant to RCW 32.05.330(3), I have fully reviewed your appeal and the relevant statutes and regulations, and affirm the department's decision.

It is our policy to intervene in matters presented to the Governor under RCW 34.05.330(3) only when we believe the agency whose decision is at issue has abused its discretion or acted arbitrarily or capriciously. It is also our policy not to second-guess the thoughtful and deliberate decisions of a state agency so long as those decisions are well founded under the law. This is an extremely high standard of review.

The department has a proper basis for its decision to deny the petition for the reasons described below. The following is a response to your arguments.

1. Violation of Statute: In item 1, point 1 of the Petition you argue that portions of the rule are in conflict with and violate statute. You state that WAC 296-19A-020 limits when the department may provide vocational rehabilitation services to occasions that services are necessary and likely to make the worker employable. You argue that this is in conflict with Title 51 RCW because it leaves no room for other purposes for vocational services, including services for employable injured workers, which you believe are mandated by RCW 51.32.095(2).

Title 51 RCW clearly indicates that one of the goals of vocational rehabilitation is employability. RCW 51.32.095(1) states in part: "One of the primary purposes of this title is to enable the injured worker to become employable at gainful employment." Similarly WAC 296-19A-020 states: "The department may, at its sole discretion, authorize vocational rehabilitation services that are necessary and likely to enable the industrially injured or ill worker to become employable". The statute and the rule are consistent.

RCW 51.32.095(2) does not mandate that vocational services be made available to employable injured workers as the Petition suggests. Rather this section establishes nine priorities for the department to follow once the determination has been made that vocational services are appropriate.

While you may believe that the department should offer vocational services to injured workers who are already employable -- the department's obligation under Title 51 RCW is to use vocational services to make the worker employable. If the worker is already employable, s/he is not entitled to vocational services. The department has interpreted the statute reasonably and in good faith.

2. Illegal Denial of Services: In item 1, point 2 of the Petition you argue that WAC 296-19A-025(1) allows illegal denial of services because it authorizes the department to deny vocational services if an injured worker didn't utilize those services on a previous claim. You contend that this violates RCW 51.32.095(1).

Vocational services are discretionary. In exercising its discretion to offer these services, the department has full authority under Title 51 RCW to adopt rules that establish guidelines for the administration of the vocational rehabilitation program. In this case the department has outlined three relevant factors (also indicating their ability to consider other factors not specified in the rule) to consider when determining whether vocational services are appropriate. Whether the worker took advantage of and utilized vocational rehabilitation services in other claims is but one consideration, not the sole determining factor of whether the vocational services will be allowed. Therefore the department's consideration of a worker's past use of services does not illegally allow the denial of vocational rehabilitation, nor does it conflict with the statute.

3. The WAC Violates the Statute: In item 1 point 3 of the Petition you argue that WAC 296-19A-210(1)(c) violates RCW 51.30.095(5) because you believe it frees employer companies from responsibility for the quality and effectiveness of vocational services provided by their employees.

RCW 51.32.095(5) mandates that the department establish criteria to monitor the quality and effectiveness of the rehabilitation services provided by individuals and organizations. WAC 269-19A-210(1)(c) which outlines the responsibility of individual providers is consistent with the statute.

4. WAC 296-19A As a Whole Violates Statute: In item, 1 point 4 of the Petition you argue that WAC 296-19A violates the statute because it does not include a provision that cites providers for failing to deliver services promptly and efficiently.

As a preliminary matter of statutory construction, the terms of the RCW need not be restated in the WAC. To the extent that the WAC provides no more specificity of the statutory terms, "prompt and efficient," the RCW governs.

Nonetheless, our review indicates that WAC 196-19A consists of several rules that require vocational services to be provided to the department promptly and efficiently. The department requires certain reports and other information to be received within a specified timeframe. The specific statements provided in a variety of rules are sufficient for the department to meet its obligations under the statute. Again, the rule is consistent with the statute.

5. The Rules Apply Differently to Public and Private Parties: In item 2, point 1 of the Petition you argue that WAC 296-19A-137 applies differently to public and private vocational providers. Your argument is based on the assertion that it is more difficult for public providers to meet the 15-day reporting requirement than it is for private providers, due to lack of resources.

WAC 296-19A-137 sets a 15-day reporting requirement for stand-alone job analysis services. This reporting requirement is exactly the same for public and private providers. Fewer resources available to public providers doesn't equate to disparate application of the rule. While I understand your concerns about the need for additional resources, this issue should more appropriately be addressed in a union management setting.

6. Violation of Due Process Requirements -- Experienced Vocational Rehabilitation Counselors Not Grandfathered: In Item 3, point 1 of the Petition you argue that the department did not make a good faith effort to incorporate public comment when the rule was reopened, thus violating due process. Specifically you argue that the department refused to grandfather experienced vocational rehabilitation counselors even though the vast majority of testimony taken on the rule requested that these counselors be grandfathered.

Our review indicates that the department conducted several focus groups, work groups, public hearings and even provided transportation for its vocational counselors to attend meetings to insure their input was received. The department went beyond the requirements set forth in the Administrative Procedures Act (APA) concerning the rulemaking process.

As you know, agencies must often adopt rules for which uniform public comment is not provided. Frequently, it is impossible to reconcile differing viewpoints on issues addressed by agency rulemaking. The APA recognizes this reality by providing that agencies indicate "...how the final rule reflects agency consideration of the comments, or why it fails to do so." (See RCW 34.05.325). Ultimately, state agencies are required to make a final decision on rules based on the best evidence available. These decisions don't always coincide with the wishes of all stakeholders. In this case the department acted in good faith and due process was afforded.

7. Illegal Burden Shifting: In item 3, point 2 of the Petition you argue that the language in WAC 296-19A-210(1)(c) was not in the draft rule and was not subject to public comment, thus denying due process. You further contend that the language in the WAC referenced above frees provider companies from responsibility for the work of their employees and places it on the employees.

The APA generally states that an agency may not adopt a rule that is "substantially different" from the published notice of the proposed rule. RCW 34.05.340 cites three factors that should be considered to determine whether a rule is "substantially different". One of those factors is the extent to which the subject of the adopted rule or the issues determined in it are substantially different from the subject or issues involved in the published proposed rule. Our review indicates that the subject and issue concerning the responsibility of individual vocational providers are very similar in both the published proposed rule and the adopted rule. Due process was afforded.

In regards to illegal burden shifting, the rule clearly indicates that both the employer company and the individual vocational counselor are responsible for the delivery of services to injured workers.

8. Conclusion: It is clear that in all instances argued in your appeal, the department made reasonable interpretations of the statutes in good faith and did not act in an arbitrary or capricious manner in adopting WAC 196-19A. Accordingly, your appeal is denied.

Thank you for your efforts and commitment to providing assistance to injured workers in the state of Washington.

Sincerely,

Gary Locke

Governor

Legislature

Code Reviser

Register

1.	Violation of Statute: In item 1, point 1 of the Petition you argue that portions of the rule are in conflict with and violate statute. You state that WAC 296-19A-020 limits when the department may provide vocational rehabilitation services to occasions that services are necessary and likely to make the worker employable. You argue that this is in conflict with Title 51 RCW because it leaves no room for other purposes for vocational services, including services for employable injured workers, which you believe are mandated by RCW 51.32.095(2).
	Title 51 RCW clearly indicates that one of the goals of vocational rehabilitation is employability. RCW 51.32.095(1) states in part: "One of the primary purposes of this title is to enable the injured worker to become employable at gainful employment." Similarly WAC 296-19A-020 states: "The department may, at its sole discretion, authorize vocational rehabilitation services that are necessary and likely to enable the industrially injured or ill worker to become employable". The statute and the rule are consistent.
	RCW 51.32.095(2) does not mandate that vocational services be made available to employable injured workers as the Petition suggests. Rather this section establishes nine priorities for the department to follow once the determination has been made that vocational services are appropriate.
	While you may believe that the department should offer vocational services to injured workers who are already employable -- the department's obligation under Title 51 RCW is to use vocational services to make the worker employable. If the worker is already employable, s/he is not entitled to vocational services. The department has interpreted the statute reasonably and in good faith.
2.	Illegal Denial of Services: In item 1, point 2 of the Petition you argue that WAC 296-19A-025(1) allows illegal denial of services because it authorizes the department to deny vocational services if an injured worker didn't utilize those services on a previous claim. You contend that this violates RCW 51.32.095(1).
	Vocational services are discretionary. In exercising its discretion to offer these services, the department has full authority under Title 51 RCW to adopt rules that establish guidelines for the administration of the vocational rehabilitation program. In this case the department has outlined three relevant factors (also indicating their ability to consider other factors not specified in the rule) to consider when determining whether vocational services are appropriate. Whether the worker took advantage of and utilized vocational rehabilitation services in other claims is but one consideration, not the sole determining factor of whether the vocational services will be allowed. Therefore the department's consideration of a worker's past use of services does not illegally allow the denial of vocational rehabilitation, nor does it conflict with the statute.
3.	The WAC Violates the Statute: In item 1 point 3 of the Petition you argue that WAC 296-19A-210(1)(c) violates RCW 51.30.095(5) because you believe it frees employer companies from responsibility for the quality and effectiveness of vocational services provided by their employees.
	RCW 51.32.095(5) mandates that the department establish criteria to monitor the quality and effectiveness of the rehabilitation services provided by individuals and organizations. WAC 269-19A-210(1)(c) which outlines the responsibility of individual providers is consistent with the statute.
4.	WAC 296-19A As a Whole Violates Statute: In item, 1 point 4 of the Petition you argue that WAC 296-19A violates the statute because it does not include a provision that cites providers for failing to deliver services promptly and efficiently.
	As a preliminary matter of statutory construction, the terms of the RCW need not be restated in the WAC. To the extent that the WAC provides no more specificity of the statutory terms, "prompt and efficient," the RCW governs.
	Nonetheless, our review indicates that WAC 196-19A consists of several rules that require vocational services to be provided to the department promptly and efficiently. The department requires certain reports and other information to be received within a specified timeframe. The specific statements provided in a variety of rules are sufficient for the department to meet its obligations under the statute. Again, the rule is consistent with the statute.
5.	The Rules Apply Differently to Public and Private Parties: In item 2, point 1 of the Petition you argue that WAC 296-19A-137 applies differently to public and private vocational providers. Your argument is based on the assertion that it is more difficult for public providers to meet the 15-day reporting requirement than it is for private providers, due to lack of resources.
	WAC 296-19A-137 sets a 15-day reporting requirement for stand-alone job analysis services. This reporting requirement is exactly the same for public and private providers. Fewer resources available to public providers doesn't equate to disparate application of the rule. While I understand your concerns about the need for additional resources, this issue should more appropriately be addressed in a union management setting.
6.	Violation of Due Process Requirements -- Experienced Vocational Rehabilitation Counselors Not Grandfathered: In Item 3, point 1 of the Petition you argue that the department did not make a good faith effort to incorporate public comment when the rule was reopened, thus violating due process. Specifically you argue that the department refused to grandfather experienced vocational rehabilitation counselors even though the vast majority of testimony taken on the rule requested that these counselors be grandfathered.
	Our review indicates that the department conducted several focus groups, work groups, public hearings and even provided transportation for its vocational counselors to attend meetings to insure their input was received. The department went beyond the requirements set forth in the Administrative Procedures Act (APA) concerning the rulemaking process.
	As you know, agencies must often adopt rules for which uniform public comment is not provided. Frequently, it is impossible to reconcile differing viewpoints on issues addressed by agency rulemaking. The APA recognizes this reality by providing that agencies indicate "...how the final rule reflects agency consideration of the comments, or why it fails to do so." (See RCW 34.05.325). Ultimately, state agencies are required to make a final decision on rules based on the best evidence available. These decisions don't always coincide with the wishes of all stakeholders. In this case the department acted in good faith and due process was afforded.
7.	Illegal Burden Shifting: In item 3, point 2 of the Petition you argue that the language in WAC 296-19A-210(1)(c) was not in the draft rule and was not subject to public comment, thus denying due process. You further contend that the language in the WAC referenced above frees provider companies from responsibility for the work of their employees and places it on the employees.
	The APA generally states that an agency may not adopt a rule that is "substantially different" from the published notice of the proposed rule. RCW 34.05.340 cites three factors that should be considered to determine whether a rule is "substantially different". One of those factors is the extent to which the subject of the adopted rule or the issues determined in it are substantially different from the subject or issues involved in the published proposed rule. Our review indicates that the subject and issue concerning the responsibility of individual vocational providers are very similar in both the published proposed rule and the adopted rule. Due process was afforded.
	In regards to illegal burden shifting, the rule clearly indicates that both the employer company and the individual vocational counselor are responsible for the delivery of services to injured workers.
8.	Conclusion: It is clear that in all instances argued in your appeal, the department made reasonable interpretations of the statutes in good faith and did not act in an arbitrary or capricious manner in adopting WAC 196-19A. Accordingly, your appeal is denied.

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