WSR 10-13-147

PROPOSED RULES

DEPARTMENT OF

SOCIAL AND HEALTH SERVICES
(Economic Services Administration)

[ Filed June 23, 2010, 8:18 a.m. ]

Original Notice.

Preproposal statement of inquiry was filed as WSR 10-09-046.

Title of Rule and Other Identifying Information: The community services division is proposing changes and additions to these WAC sections in order to comply with the changes outlined in E2SHB 2782, chapter 8, Laws of 2010, as signed by the governor on March 29, 2010: WAC 388-400-0025 Who is eligible for general assistance-unemployable benefits?, 388-448-0010 How do we decide if you are incapacitated?, 388-448-0130 Treatment and referral requirements, 388-448-0140 Good cause for refusing medical treatment or other agency referrals, 388-448-0150 Penalty for refusing medical treatment or other agency referrals, and 388-448-0160 When do my general assistance benefits end?; and new sections WAC 388-448-0220 How does alcohol or drug dependence affect my eligibility for disability lifeline? and 388-448-0250 Are there limits on the number of months I may receive disability lifeline benefits?

Hearing Location(s): Office Building 2, Auditorium, DSHS Headquarters, 1115 Washington, Olympia, WA 98504 (public parking at 11th and Jefferson. A map is available at http://www1.dshs.wa.gov/msa/rpau/RPAU-OB-2directions.html or by calling (360) 664-6094), on July 27, 2010, at 10:00 a.m.

Date of Intended Adoption: Not earlier than July 28, 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 July 27, 2010.

Assistance for Persons with Disabilities: Contact Jennisha Johnson, DSHS rules consultant, by July 6, 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 proposed amendments include a renaming of the general assistance program to disability lifeline, specific treatment and referrals requirements as conditions of eligibility, and limits on benefits months.

Reasons Supporting Proposal: The amendments and additions are necessary to comply with the changes outlined in E2SHB 2782, chapter 8, Laws of 2010, as signed by the governor on March 29, 2010.

Statutory Authority for Adoption: RCW 74.04.005, 74.04.050, 74.04.055, 74.04.057, 74.04.51 [74.04.510], 74.08.090, 74.08A.100, and 74.04.770.

Statute Being Implemented: RCW 74.04.0005 [74.04.005], E2SHB 2782, chapter 8, Laws of 2010, as signed by the governor on March 29, 2010.

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."

May 26, 2010

Katherine I. Vasquez

Rules Coordinator

4209.8
AMENDATORY SECTION(Amending WSR 06-13-043, filed 6/15/06, effective 7/17/06)

WAC 388-400-0025   Who is eligible for ((general assistance-unemployable)) disability lifeline benefits?   (1) Effective March 29, 2010, the "general assistance" program was replaced by "disability lifeline." Any reference in Washington Administrative Code (WAC) to general assistance also applies to disability lifeline.

(2) You ((can get general assistance-unemployable (GAU))) are eligible for disability lifeline (DL) benefits if you:

(a) Are incapacitated as required under WAC ((388-448-0010)) 388-448-0001 through 388-448-0120;

(b) Are at least eighteen years old or, if under eighteen, a member of a married couple;

(c) Are in financial need according to ((GAU)) DL income and resource rules in chapters 388-450, 388-470 and 388-488 WAC. We determine who is in your assistance unit according to WAC 388-408-0010;

(d) Meet the ((general assistance)) disability lifeline citizenship/alien status requirements under WAC 388-424-0015(2);

(e) Provide a Social Security number as required under WAC 388-476-0005;

(f) Reside in the state of Washington as required under WAC 388-468-0005;

(g) Undergo ((a)) referrals for assessment, treatment ((and referral assessment)), or to other agencies as provided under WAC 388-448-0130 through 388-448-0150;

(h) ((Assign)) Sign an interim assistance reimbursement authorization and agree to repay general assistance or disability lifeline benefits duplicated by supplemental security income benefits as ((provided)) described under WACs 388-448-0200, 388-448-0210 and 388-474-0020;

(i) Report changes of circumstances as required under WAC 388-418-0005; and

(j) Complete a mid-certification review and provide proof of any changes as required under WAC 388-418-0011.

(((2))) (3) You ((cannot get GAU)) aren't eligible for disability lifeline benefits if you:

(a) ((You)) Have received general assistance or disability lifeline benefits for more than the maximum number of months as defined in WAC 388-448-0250.

(b) Are eligible for temporary assistance for needy families (TANF) benefits((;)).

(((b) You)) (c) Are eligible for state family assistance (SFA) benefits ((unless you are not eligible under WAC 388-400-0010;)).

(((c) You have the ability to, but)) (d) Refuse or fail to meet a TANF or SFA eligibility rule((;)).

(((d) You)) (e) Refuse or fail to participate in drug or alcohol treatment as required in WAC 388-448-0220.

(f) Are eligible for supplemental security income (SSI) benefits((;)).

(((e) You)) (g) Are an ineligible spouse of an SSI recipient((; or)).

(((f) Social Security Administration (SSA) denied your application for benefits or terminated your benefits for failing to follow a SSI program rule or application requirement.

(3) We determine who is in your assistance unit according to WAC 388-408-0010)) (h) Failed to follow a social security administration (SSA) program rule or application requirement and SSA denied or terminated your benefits.

(4) If you reside in a public institution and meet all other requirements, your eligibility for DL depends on the type of institution. A "public institution" is an institution that is supported by public funds, and a governmental unit either is responsible for it or exercises administrative control over it. ((If you live in a public institution, you may be eligible for GAU depending on the type of institution you are in.))

(a) ((If you reside in a public institution and are otherwise eligible for GAU,)) You may be eligible for ((general assistance)) disability lifeline if you are:

(i) A patient in a public medical institution; or

(ii) A patient in a public mental institution and ((are)):

(A) Sixty-five years of age or older; or

(B) Twenty years of age or younger.

(b) You ((are not)) aren't eligible for ((GAU)) DL when you are in the custody of or confined in a public institution such as a state penitentiary or county jail including placement:

(i) In a work release program; or

(ii) Outside of the institution including home detention.

[Statutory Authority: RCW 74.04.050, 74.04.055, 74.04.057, 74.04.510, 74.08.090. 06-13-043, 388-400-0025, filed 6/15/06, effective 7/17/06. Statutory Authority: RCW 74.04.050, 74.04.055, 74.04.057, 74.04.510 and 2004 c 54. 04-23-027, 388-400-0025, filed 11/8/04, effective 12/9/04. Statutory Authority: RCW 74.04.050, 74.04.055, 74.04.057, 74.08.090. 04-15-057, 388-400-0025, filed 7/13/04, effective 8/13/04. Statutory Authority: RCW 74.04.057, 74.08.090. 00-15-017, 388-400-0025, 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, 388-400-0025, filed 7/31/98, effective 9/1/98.]


AMENDATORY SECTION(Amending WSR 04-07-140, filed 3/22/04, effective 5/1/04)

WAC 388-448-0010   How do we decide if you are incapacitated?   When you apply for ((GA)) disability lifeline program benefits, you must provide medical evidence to us to show that you are unable to work.

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

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

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

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

(2) We ((decide)) determine if you are incapacitated when:

(a) You apply for ((GA)) disability lifeline benefits((. We may waive this decision if we use the criteria in WAC 388-448-0001 except the PEP to determine you are incapacitated));

(b) You become employed;

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

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

(3) Unless you meet the other incapacity criteria in WAC 388-448-0001, we 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)) aren't eligible for ((GA)) DL benefits if you are incapacitated ((only)) primarily 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)) disability lifeline. ((If you qualify for both 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 74.08.090, 74.04.005, and 2003 1st sp.s. c 10. 04-07-140, 388-448-0010, 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, 388-448-0010, filed 8/2/00, effective 9/1/00.]


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

WAC 388-448-0130   Treatment and referral requirements.   We refer you ((to medical providers for available)) for medical treatment or to other agencies for ((treatment)) services, rehabilitation, or work activities when we decide ((it)) medical treatment or services are available, and will improve your ability to ((be)) become gainfully employed or reduce your need for ((GAU)) disability lifeline benefits. "((Available)) Medical treatment" means any medical, surgical, ((chemical dependency, or)) mental health service((s)), or ((a combination of them)) any other treatment or service recommended by a medical or mental health provider.

(1) When you are first approved, and at each review determination, we give you written information regarding your medical treatment and agency referral requirements.

(2) You must accept and follow through on required medical treatment and referrals to other agencies and services, ((including applying for SSI,)) unless you have good cause for not doing so. ((Examples of good cause are found)) Good cause for medical treatment and referrals is defined in WAC 388-448-0140.

(3) ((We may require you to undergo alcohol or drug treatment before reviewing your eligibility for GAU.

(4))) You may request ((a fair)) an administrative hearing if you disagree with the medical treatment or agency referral requirements we set for you (see WAC 388-458-0040).

[Statutory Authority: RCW 74.04.050, 74.04.055, 74.04.057, 74.04.510, and 74.08.090. 01-14-059, 388-448-0130, 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, 388-448-0130, filed 8/2/00, effective 9/1/00.]


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

WAC 388-448-0140   When does a person have good cause for refusing or failing to participate in medical treatment or referrals to other ((agency referrals.)) agencies?   ((We may determine that you have good cause for refusing)) When you refuse or fail to participate in required medical treatment or referrals to other agencies, you may claim good cause by providing a reason for your refusal or failure. We determine whether your reason is valid. We may require you to provide proof to support your good cause claim. ((Valid reasons for refusing treatment and other agency referrals include, but are not limited to, the following:)) These rules do not apply to participation requirements listed in WACs 388-448-0200 through 388-448-0250.

(1) Valid reasons for refusing or failing to participate in medical treatment ((referrals)):

(a) You are so fearful of the treatment that your fear could interfere with the treatment or reduce its benefits;

(b) ((Treatment could)) The treatment provider has identified a risk that the treatment may cause further limitations or loss of a function or an organ and you are not willing to take that risk;

(c) You practice an organized religion that prohibits the treatment; or

(d) We determine that treatment is not available because you can't obtain it without cost to you.

(2) Valid reasons for refusing ((treatment or)) or failing to participate in referrals to other ((agency referrals)) agencies:

(a) ((We did not)) You are unable to participate because we didn't give you enough information about the requirement;

(b) You ((did not)) didn't receive written notice of the requirement;

(c) The requirement was made in error;

(d) You ((are)) provide proof of interference beyond your control that temporarily ((unable to participate because of documented interference,)) prevented you from participating; or

(e) Your medical condition or limitations are consistent with the ((definition of)) need for necessary supplemental accommodation (NSA), as defined in WAC 388-472-0020 and ((your condition or limitations)) contributed to your refusal or failure, per WAC 388-472-0050.

[Statutory Authority: RCW 74.04.050, 74.04.055, 74.04.057, 74.04.510, and 74.08.090. 01-14-059, 388-448-0140, 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, 388-448-0140, filed 8/2/00, effective 9/1/00.]


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

WAC 388-448-0150   Penalty for refusing or failure to participate in medical treatment or other agency referrals.   (1) If you refuse or fail to participate in required medical treatment or agency referral without having good cause, we will ((stop)) terminate your ((GAU)) disability lifeline benefits.

(2) ((We stop)) You are ineligible for cash and medical benefits until you participate in:

(a) Chemical dependency treatment as required under WAC 388-448-0220.

(b) Obtaining federal aid assistance as required under WAC 388-448-0200.

(3) If we terminate your ((GAU)) disability lifeline benefits ((until you agree to accept and pursue the)) because you didn't have good cause to refuse, or fail to participate in, other required medical treatment services or referrals to other agencies, you are not eligible for cash and medical benefits until you verify that you have agreed to accept and pursue the medical treatment service or referral to other agencies.

(((3))) (4) If you reapply for disability lifeline, you must participate as described in subsection (2) and (3) and wait for a penalty period to pass before you begin ((getting)) receiving benefits. The penalty is based on how often you have refused:


Refusal Penalty
First One week
Second within six months One month
Third and subsequent within one year Two months

[Statutory Authority: RCW 74.04.050, 74.04.055, 74.04.057, 74.08.090. 00-16-113, 388-448-0150, filed 8/2/00, effective 9/1/00.]


AMENDATORY SECTION(Amending WSR 04-07-140, filed 3/22/04, effective 5/1/04)

WAC 388-448-0160   When do my ((general assistance)) disability lifeline benefits end?   (1) The maximum period of eligibility for ((general assistance)) disability lifeline is twelve months before we must review ((additional medical evidence)) incapacity.

(a) We use current medical evidence and the expected length of time before you are capable of gainful employment to decide when your benefits will end.

(b) If you meet the incapacity criteria in WAC 388-448-0001 (1)(a) through (e), you must provide information about your cooperation and progress with treatment or agency referrals we required according to WAC 388-448-0130.

(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)) The 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)) aren't eligible for ((general assistance)) disability lifeline when:

(a) We ((get)) receive current medical evidence that ((does not)) doesn't 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)) sufficient to show incapacity; or

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

[Statutory Authority: RCW 74.08.090, 74.04.005, and 2003 1st sp.s. c 10. 04-07-140, 388-448-0160, 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, 388-448-0160, filed 8/2/00, effective 9/1/00.]


NEW SECTION
WAC 388-448-0220   How does alcohol or drug dependence affect my eligibility for disability lifeline?   (1) You must complete a chemical dependency assessment when we have information that indicates you may be chemically dependent.

(2) You must accept an assessment referral and participate in drug or alcohol treatment if a certified chemical dependency counselor indicates a need for treatment, unless you meet one of the following good cause reasons:

(a) We determine that your physical or mental health impairment prevents you from participating in treatment.

(b) The outpatient chemical dependency treatment you need isn't available in the county you live in.

(c) You need inpatient chemical dependency treatment at a location that you can't reasonably access.

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NEW SECTION
WAC 388-448-0250   Are there limits on the number of months I may receive disability lifeline benefits?   (1) Beginning September 1, 2010, you may be eligible to receive disability lifeline benefits for a maximum of twenty-four out of any sixty month period.

(2) You aren't subject to a benefit month limit if:

(a) You are aged sixty-five or older.

(b) Blind as defined in WAC 388-475-0050.

(c) We have determined you meet, or are likely to meet, the social security administration (SSA) disability standard.

(3) We count months you received general assistance or disability lifeline benefits in the last sixty months towards your maximum benefit limit.

(4) We don't count any benefit month that you were determined to meet the criteria in subsection (2) towards your maximum benefit limit.

(5) We will review your case record to determine if you are likely to meet the SSA disability standard before we terminate your benefits.

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Washington State Code Reviser's Office