Original Notice.

     Preproposal statement of inquiry was filed as WSR 08-13-048.

     Title of Rule and Other Identifying Information: The community services division is proposing to amend WAC 388-448-0030 What medical evidence do I need to provide? and 388-448-0040 Progressive evaluation process (PEP) step I -- Review of medical evidence required for eligibility determination.

     Hearing Location(s): Blake Office Park East, Rose Room, 4500 10th Avenue S.E., Lacey, WA 98503 (one block north of the intersection of Pacific Avenue S.E. and Alhadeff Lane. A map or directions are available at http://www1.dshs.wa.gov/msa/rpau/docket.html or by calling (360) 664-6094), on October 21, 2008, at 10:00 a.m.

     Date of Intended Adoption: Not earlier than October 22, 2008.

     Submit Written Comments to: DSHS Rules Coordinator, P.O. Box 45850, Olympia, WA 98504, delivery 4500 10th Avenue S.E., Lacey, WA 98503, e-mail schilse@dshs.wa.gov, fax (360) 664-6185, by 5 p.m. on October 21, 2008.

     Assistance for Persons with Disabilities: Contact Jennisha Johnson, DSHS rules consultant, by October 14, 2008,

TTY (360) 664-6178 or (360) 664-6094 or by e-mail at johnsjl4@dshs.wa.gov.

     Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: The department is proposing amendments to the description of medical evidence requirements needed to determine incapacity.

     Reasons Supporting Proposal: These changes are needed to clarify and align the medical evidence rules with the intent of RCW 74.04.005.

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

     Statute Being Implemented: RCW 74.08.090, 74.04.005, 74.04.050, 74.04.055, 74.04.057.

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

     Name of Proponent: Department of social and health services, governmental.

     Name of Agency Personnel Responsible for Drafting, Implementation and Enforcement: Melissa Mathson, 712 Pear Street S.E., Olympia, WA 98503, (360) 725-4563.

     No small business economic impact statement has been prepared under chapter 19.85 RCW. These proposed rules do not have an economic impact on small businesses. The proposed amendments only affect DSHS clients by clarifying the description of medical evidence requirements to determine incapacity.

     A cost-benefit analysis is not required under RCW 34.05.328. These amendments are exempt as allowed under RCW 34.05.328 (5)(b)(vii) which states in-part, "[t]his section does not apply to...rules of the department of social and health services relating only to client medical or financial eligibility and rules concerning liability for care of dependents."

September 11, 2008

Stephanie E. Schiller

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)) (3) Medical records sufficient for an incapacity determination must include:

     (a) A diagnosis for the impairment, or impairments, based on an examination performed by a medical professional described in WAC 388-448-0020 within twelve months of application;

     (b) Documentation of how the impairment, or impairments, is currently limiting your ability to work based on an examination:

     (i) By a medical professional described in WAC 388-448-0020; and

     (ii) Performed within the ninety days of the date of application or the forty-five days before the month of incapacity review.

     (c) A clear description of how ((the)) each 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))) (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 diagnosis or symptoms of substance abuse or addiction when determining incapacity.

     (6) We may use a diagnosis of a permanent impairment that is the result of substance abuse or addiction.

     (7) 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))) (8) 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.

     (9) We can't accept a statement that you are incapacitated from a medical professional 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.]

     (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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