WSR 10-04-109

PROPOSED RULES

DEPARTMENT OF

SOCIAL AND HEALTH SERVICES
(Economic Services Administration)

[ Filed February 3, 2010, 11:03 a.m. ]

Original Notice.

Preproposal statement of inquiry was filed as WSR 09-19-125.

Title of Rule and Other Identifying Information: The community services division is proposing to redefine incapacity by amending WAC 388-448-0050 PEP [step] II -- How we determine the severity of mental impairments, 388-448-0080 PEP step V -- How we determine your ability to function in a work environment if you have an mental impairment, 388-448-0090 PEP step V -- How we determine your ability to function in a work environment if you have a physical impairment, 388-448-0100 PEP step VI -- How we evaluate capacity to perform relevant past work, and 388-448-0110 PEP step VII -- How we evaluate your capacity to perform other work.

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 March 9, 2010, at 10:00 a.m.

Date of Intended Adoption: Not earlier than March 9, 2010.

Submit Written Comments to: DSHS Rules Coordinator, P.O. Box 45850, Olympia, WA 98504-5850, delivery 4500 10th Avenue S.E., Lacey, WA 98503, e-mail DSHSRPAURulesCoordinator@dshs.wa.gov, fax (360) 664-6185, by 5 p.m. on March 9, 2010.

Assistance for Persons with Disabilities: Contact Jennisha Johnson, DSHS rules consultant, by February 23, 2010, 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 will propose amendments in order to more closely align the general assistance incapacity criteria with the Social Security Administration disability criteria.

Reasons Supporting Proposal: The proposed amendments could help the department stay within budget appropriations for the program.

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

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

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."

January 28, 2010

Don Goldsby, Manager

Rules and Policies Assistance Unit

4174.2
AMENDATORY SECTION(Amending WSR 09-11-078, filed 5/18/09, effective 6/18/09)

WAC 388-448-0050   PEP step II -- How we determine the severity of mental impairments.   If you are diagnosed with a mental impairment by a professional described in WAC 388-448-0020, we use information from the provider to determine ((if your)) how the impairment ((prevents you from being able to work)) directly affects work-related activities.

(1) We review the following psychological evidence to determine the severity of your mental impairment:

(a) Psychosocial and treatment history records;

(b) Clinical findings of specific abnormalities of behavior, mood, thought, orientation, or perception;

(c) Results of psychological tests; and

(d) Symptoms observed by the examining practitioner that show how your impairment affects your ability to perform basic work-related activities.

(2) We exclude diagnosis and related symptoms of alcohol or substance abuse or addiction;

(3) We exclude mental illness diagnoses that don't directly impair your ability to communicate, understand, and follow work instructions, such as:

(a) Passive behaviors.

(b) Learning deficits.

(4) If you are diagnosed with mental retardation, the diagnosis must be based on the Wechsler Adult Intelligence Scale (WAIS). The following test results determine the severity rating:


Intelligence Quotient (IQ) Score Severity Rating
((85)) 76 or above 1
((71)) 65 to ((84)) 75 3
((70)) 64 or lower 5

(((4))) (5) If you are diagnosed with a mental impairment with physical causes, we assign a severity rating based on the most severe of the following four areas of impairment:

(a) Short term memory impairment;

(b) Perceptual or thinking disturbances;

(c) Disorientation to time and place; or

(d) Labile, shallow, or coarse affect.

(((5))) (6) We base the severity of a functional disorder on a clinical assessment of the intensity and frequency of symptoms that:

(a) Affect your ability to perform basic work related activities; and

(b) Are consistent with a diagnosis of a mental impairment as listed in the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV).

(((6))) (7) We base the severity rating for a functional mental impairment on accumulated severity ratings for the symptoms in subsection (5)(a) of this section as follows:


Symptom Ratings or Condition Severity Rating
(a) ((The)) You are diagnosed with a functional ((mental impairment is diagnosed)) disorder with psychotic features;

(b) You have had two or more hospitalizations for psychiatric reasons in the past two years;

(c) You have had more than six months of continuous psychiatric ((hospital)) inpatient or residential treatment in the past two years;

(d) The ((overall assessment of symptoms is rated three; or

(e) At least three symptoms are rated three or higher)) objective evidence and global assessment of functional score are consistent with a significant limitation on performing work activities.

3
(((f))) (e) The ((overall assessment of symptoms is rated four; or

(g) At least three symptoms are rated four or five)) objective evidence and global assessment of functioning score are consistent with very significant limitations on ability to perform work activities.

4
(((h))) (f) The ((overall assessment of symptoms is rated five; or

(i) At least three symptoms are rated five)) objective evidence and global assessment of functioning score are consistent with the absence of ability to perform work activities.

5

(((7))) (8) If you are diagnosed with any combination of mental retardation, mental impairment with physical causes, or functional mental impairment, we assign a severity rating as follows:

Condition Severity Rating
(a) Two or more disorders with moderate severity ratings ((of three)); or

(b) One or more disorders rated ((three)) moderate severity; and one rated ((four)) marked severity.

4
(c) Two or more disorders rated ((four)) marked severity. 5

(((8))) (9) We deny incapacity when you haven't been diagnosed with a significant physical impairment and your overall mental severity rating is one or two;

(((9))) (10) We approve incapacity when you have an overall mental severity rating of five.

[Statutory Authority: RCW 74.04.050, 74.04.055, 74.04.057, 74.08.090. 09-11-078, 388-448-0050, filed 5/18/09, effective 6/18/09; 00-16-113, 388-448-0050, filed 8/2/00, effective 9/1/00.]


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

WAC 388-448-0080   PEP step V -- How we determine your ability to function in a work environment if you have a mental impairment.   If you have a mental impairment we evaluate your cognitive and social functioning in a work setting. Functioning means your ability to perform ((the)) typical tasks that would be required ((of you on the)) in a routine job setting and your ability to ((get along with your coworkers, supervisors and other people you would be in contact with while on the job)) interact effectively while working.

(1) We evaluate cognitive ((factors)) and social functioning by assessing your ability to:

(a) Understand, remember, and persist in tasks by following simple((, one- or two-step)) instructions((;)) of one or two steps.

(b) Understand, remember, and persists in tasks by following complex instructions((, with)) of three or more steps((;)).

(c) Learn new tasks((;)).

(d) ((Exercise judgment and make decisions; and

(e))) Perform routine tasks without undue supervision.

(((2) We approve incapacity when the practitioner's evaluation shows you are:

(a) At least moderately impaired in your ability to understand, remember, and follow simple instructions and at least moderately limited in your ability to:

(i) Learn new tasks, exercise judgment, and make decisions; and

(ii) Perform routine tasks without undue supervision; or

(b) Able to understand, remember, and follow simple instructions, but are:

(i) At least moderately impaired in the ability to understand, remember, and follow instructions with three or more steps; and

(ii) Markedly impaired in the ability to learn new tasks, exercise judgment and make decisions, and perform routine tasks without undue supervision.

(3) The practitioner's evaluation reports your social factors after assessing your ability to:

(a) Relate appropriately to coworkers and supervisors;

(b) Relate appropriately in contacts with the public;

(c) Tolerate the pressures of a work setting;

(d) Perform self-care activities, including personal hygiene; and

(e) Maintain appropriate behavior in a work setting.

(4) We approve incapacity if you are rated at least two in one area of social functioning and at least three in all other areas of social functioning)) (e) Interact safely and effectively in a work setting with public contact.

(f) Interact safely and effectively in a work setting with limited public contact.

(g) Perform effectively in a work setting.

[Statutory Authority: RCW 74.04.050, 74.04.055, 74.04.057, 74.08.090. 00-16-113, 388-448-0080, filed 8/2/00, effective 9/1/00.]


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

WAC 388-448-0090   PEP step V -- How we determine your ability to function in a work environment if you have a physical impairment.   In Step V of the PEP we review the medical evidence you provide and make a determination of how your physical impairment prevents you from working. This determination is then used in Steps VI and VII of the PEP to determine your ability to perform either work you have done in the past or other work.

(1) "Exertion level" means ((the ability)) having strength, flexibility, and mobility to lift, carry, stand ((and)) or walk ((with the strength)) as needed to fulfill job duties in the following work ((categories)) levels. For this section, "occasionally" means less than one-third of the time and "frequently" means one-third to two-thirds of the time. ((We only consider your strength, mobility, and flexibility. We review any work limits you have in the following areas, and then assign an exertion level and determine exertional limitations.))

The following table is used to determine your exertion level. Included in this table is a strength factor, which is your ability to perform physical activities, as defined in Appendix C of the Dictionary of Occupational Titles (DOT), Revised Edition, published by the U.S. Department of Labor.

If you are able to: Then we assign this exertion level
(a) ((Can not)) Lift ((at least)) no more than two pounds or unable to stand ((and/))or walk. Severely limited
(b) ((Can)) Lift ten pounds maximum and frequently lift ((and/))or carry lightweight articles. Walking ((and)) or standing ((are)) only ((required)) for brief periods. Sedentary
(c) ((Can)) Lift twenty pounds maximum and frequently lift ((and/))or carry objects weighing up to ten pounds. Walk six out of eight hours per day or stand during a significant portion of the workday((, with)). Sitting and using pushingor/pulling arm or leg movements most of the day. Light
(d) ((Can)) Lift fifty pounds maximum and frequently lift ((and/))or carry up to twenty-five pounds. Medium
(e) ((Can)) Lift one hundred pounds maximum and frequently lift ((and/))or carry up to fifty pounds. Heavy
(2) "Exertionally related limitation" means a restriction in mobility, agility or flexibility in the following twelve activities: Balancing, bending, climbing, crawling, crouching, handling, kneeling, pulling, pushing, reaching, sitting, and stooping. If you have exertionally related limitations, we consider them in determining your ability to work.

(3) "Functional physical capacity" means the degree of strength, agility, flexibility, and mobility you can apply to work-related activities. We consider the effect of the physical impairment on the ability to perform work-related activities when the physical impairment is assigned an overall severity rating of three or four. We determine functional physical capacity based on your exertional, exertionally related and nonexertional limitations. All limitations must be substantiated by the medical evidence and directly related to the diagnosed impairment(s).

(4) "Nonexertional physical limitation" means a restriction on work activities that does not affect strength, mobility, agility, or flexibility. Examples are:

(a) Environmental restrictions which could include, among other things, your inability to work in an area where you would be exposed to chemicals; and

(b) Workplace restrictions, such as impaired hearing or speech, which would limit the types of work environments you could work in.

[Statutory Authority: RCW 74.04.050, 74.04.055, 74.04.057, 74.08.090. 00-16-113, 388-448-0090, filed 8/2/00, effective 9/1/00.]


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

WAC 388-448-0100   PEP step VI -- How we evaluate capacity to perform relevant past work.   If your overall severity rating is ((three)) moderate or ((four)) marked and we have reached this stage of the PEP and have not approved or denied your application, we decide if you can do the same or similar work as you have done in the past. We look at your current physical and/or mental limitations from cognitive, social, and vocational factors to make this decision. Vocational factors are education, relevant work history, and age.

(1) We evaluate education in terms of formal schooling or other training to acquire skills that enables you to meet job requirements. We classify education as:


If you Then your education level is
(a) ((Can not)) Can't read or write a simple communication, such as two sentences or a list of items. Illiterate
(b) Have no formal schooling or vocational training beyond the ((eleventh)) tenth grade; or

(c) ((Have)) Had participated in special education in basic academic classes of reading, writing, or mathematics in high school.

Limited education
(d) Have received a high school diploma or general equivalency degree (GED); or

(e) Have received skills training and were awarded a certificate, degree or license.

High school and above level of education

(2) We evaluate your work experience to determine if you have relevant past work. "Relevant past work" means work ((that)):

(a) ((Is normally done for pay or profit. We exclude work done in a sheltered workshop, a job where you were given special consideration, or activities you may have performed as a student or homemaker;)) Defined as gainful employment per WAC 388-448-0010.

(b) Has been performed in the past ((five)) ten years((; and)).

(c) You ((have done)) performed long enough ((for you)) to ((have acquired)) acquire the knowledge and skills to continue performing the job. You must meet the specific vocational preparation level as defined in Appendix C of the Dictionary of Occupational Titles.

(3) For each relevant past work situation you have had, we determine:

(a) The exertional or skill requirements of the job((; and)).

(b) Current cognitive, social, or nonexertional factors that significantly limit your ability to perform past work.

(4) After considering vocational factors, we ((approve or)) deny incapacity ((based on the following)) when you have:

((If you)) ((Then we take this action on incapacity))
(((a) Have the physical or mental ability to perform past work and there is no significant cognitive, social or nonexertional limitation.)) ((Deny))
(((b) Have recently acquired specific work skills through completion of vocational training, enabling you to work within your current physical or mental capacities.)) ((Deny))
(((c) Are fifty-five years of age or older and have an impairment that is assigned an overall severity rating of at least three and do not have the physical or mental ability to perform past work or do not have work experience.)) ((Approve))

(a) The physical and mental ability to perform past work, and there is no significant cognitive, social or nonexertional limitation that would prevent you from performing past work; or

(b) Recently acquired specific work skills through completion of schooling or training, for jobs within your current physical or mental capacities.

[Statutory Authority: RCW 74.04.050, 74.04.055, 74.04.057, 74.08.090. 00-16-113, 388-448-0100, filed 8/2/00, effective 9/1/00.]


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

WAC 388-448-0110   PEP step VII -- How we evaluate your capacity to perform other work.   If we decide you cannot do work that you've done before, we then decide if you can do any other work. ((In making this decision, we again consider vocational factors of age, education and limited English proficiency (LEP).))

(1) We approve incapacity if you have a physical impairment only and meet the vocational factors below:


Highest work level assigned by the practitioner Your age Your education level ((Other vocational factors))
Sedentary Any age ((Any level)) Limited education or limited English proficiency (LEP) ((Does not apply))
((Light)) ((Fifty and older)) ((Any level)) ((Does not apply))
Light ((Thirty-five)) Fifty and older ((Illiterate)) Limited education or LEP ((Does not apply))
((Light)) ((Eighteen and older)) ((Limited education)) ((Does not have any past work))
((Medium)) ((Fifty and older)) ((Limited education)) ((Does not have any past work))
Medium Fifty-five and older ((Any level)) Limited education or LEP ((Does not apply))
((Heavy)) ((Fifty-five and older)) ((Any level)) ((Environmental restrictions apply))

(2) We approve incapacity when you have a moderate or marked mental health impairment only and ((meet the age and social functioning limitations below)) we have objective medical evidence, including a mental status exam (MSE) per WAC 388-448-0050, that demonstrates social or cognitive factors described in WAC 388-448-0080, interfere with working as follows:

((Social limitation)) ((Age))
(((a) Can not appropriately relate to coworkers and supervisors (rated three); and

(b) Can not tolerate the pressures of a work setting (rated four).))

((Fifty years and older))
(((c) Can not tolerate the pressures for a work setting (rated five).)) ((Eighteen to fifty-four))
(((d) A mental disorder severity rated four;

(e) One or more symptoms from WAC 388-448-0050(4) (rated five);

(f) Can not appropriately relate to coworkers and supervisors (rated three); and

(g) Can not tolerate the pressures of a work setting (rated four).))

((Eighteen to forty-nine))

(a) You have a moderate impairment in your ability to:

(i) Interact safely and effectively in a work setting with public contact.

(ii) Perform effectively in a work setting.

(iii) Understand, remember, and persist in tasks by following complex instructions of three or more steps.

(b) You have marked impairment in your ability to:

(i) Interact safely and effectively in a work setting with limited public contact.

(ii) Perform effectively in a work setting.

(c) You have a marked impairment in your ability to:

(i) Understand, remember, and persist in tasks by following simple instructions of one or two steps.

(ii) Perform routine tasks without undue supervision.

(iii) Interact safely and effectively in a work setting with limited public contact.

(3) We approve incapacity when you have ((both)) at least a moderate mental ((and)) health impairment, a moderate physical ((impairments)) impairment and ((vocational)) we have objective medical evidence, including a mental status exam (MSE) per WAC 388-448-0050, that demonstrate social or cognitive factors, as described in WAC 388-448-0080, interfere with working as follows:

((Your age)) Work Level ((Your education)) Your other restrictions
((Any age)) Sedentary ((Any level)) (a) ((Can not appropriately relate to coworkers and supervisors (rated three; and

(b) Can not tolerate pressures of a work setting (rated four))) You are moderately impaired in your ability to:

(i) Understand, remember, and persist in tasks by following complex instructions of three or more steps.

(ii) Learn new tasks.

(iii) Perform routine tasks without undue supervision.

(iv) Interact safely.

((Fifty or older)) Light ((Limited education)) (((c) Restricted to medium work level or less)) (b) You are markedly impaired in your ability to:

(i) Understand, remember, and persist in tasks by following complex instructions of three or more steps.

(ii) Learn new tasks.

(iii) Perform routine tasks without undue supervision.

(iv) Interact safely and effectively in a work setting with public contact.

((Eighteen to forty-nine)) Medium ((Limited education)) (((d) Restricted to light work level)) (c) You are markedly impaired in your ability to:

(i) Understand, remember, and persist in tasks by following simple instructions of one or two steps.

(ii) Learn new tasks.

(iii) Perform routine tasks without undue supervision.


(((4) If we do not find that you are incapacitated by the end of Step VII of the PEP, an administrative review team (ART) makes the incapacity decision. The review team consists of two or more persons within the community service office (CSO) who are not in the position of providing direct eligibility or incapacity services to you. The ART reviews the medical evidence and your vocational factors.))

[Statutory Authority: RCW 74.04.050, 74.04.055, 74.04.057, 74.08.090. 00-16-113, 388-448-0110, filed 8/2/00, effective 9/1/00.]

Washington State Code Reviser's Office