WSR 10-20-089

PERMANENT RULES

DEPARTMENT OF

SOCIAL AND HEALTH SERVICES
(Economic Services Administration)

[ Filed September 30, 2010, 10:16 a.m. , effective November 1, 2010 ]


Effective Date of Rule: November 1, 2010.

Purpose: The department is amending sections of chapter 388-448 WAC to eliminate the use of administrative review teams, replace obsolete terminology, and revise functional assessment language.

Citation of Existing Rules Affected by this Order: Amending WAC 388-448-0050, 388-448-0080, 388-448-0090, 388-448-0100, and 388-448-0110.

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

Adopted under notice filed as WSR 10-13-158 on June 23, 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Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 0, Repealed 0.

Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.

Number of Sections Adopted on the Agency's Own Initiative: New 0, Amended 0, Repealed 0.

Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 5, Repealed 0.

Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0; Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 0, Amended 5, Repealed 0.

Date Adopted: August 17, 2010.

Katherine I. Vasquez

Rules Coordinator

4205.5
AMENDATORY SECTION(Amending WSR 10-08-036, filed 3/31/10, effective 5/1/10)

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 how the impairment limits 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 disorders that don't impair thought, mood, memory, or cognition, 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
((76)) 85 or above None (1)
((65)) 71 to ((75)) 84 Moderate (3)
((64)) 70 or lower Severe (5)

(((5))) (4) 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.

(((6))) (5) We base the severity of an impairment diagnosed as a mood, thought, memory, or cognitive 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).

(((7))) (6) 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) You are diagnosed with a functional 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 inpatient or residential treatment in the past two years;

(d) The objective evidence and global assessment of functional score are consistent with a significant limitation on performing work activities.

Moderate (3)
(e) The objective evidence and global assessment of functioning score are consistent with very significant limitations on ability to perform work activities. Marked (4)
(f) The objective evidence and global assessment of functioning score are consistent with the absence of ability to perform work activities. Severe (5)

(((8))) (7) 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 (3) ratings; or

(b) One or more disorders rated moderate severity (3); and one rated marked severity (4).

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

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

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

[Statutory Authority: RCW 74.04.050, 74.04.055, 74.04.057, 74.08.090, and 74.04.005. 10-08-036, 388-448-0050, filed 3/31/10, effective 5/1/10. 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 10-08-036, filed 3/31/10, effective 5/1/10)

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 typical tasks that would be required in a routine job setting and your ability to interact effectively while working.

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

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

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

(c) Learn new tasks.

(d) Perform routine tasks without undue supervision.

(e) Be aware of normal hazards and take appropriate precautions.

(f) Communicate and perform effectively in a work setting with public contact.

(g) Communicate and perform effectively in a work setting with limited public contact.

(h) Maintain appropriate behavior in a work setting.

(2) We approve incapacity when we have objective medical evidence, including a mental status exam (MSE) per WAC 388-448-0050, that demonstrates you are:

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

(i) Learn new tasks;

(ii) Be aware of normal hazards and take appropriate precautions; and

(iii) Perform routine tasks without undue supervision; or

(b) At least moderately impaired in the ability to understand, remember, and persist in task following complex instructions; and

(c) Markedly impaired in the ability to learn new tasks, be aware of normal hazards and take appropriate precautions, and perform routine tasks without undue supervision.

(3) We approve incapacity when you are moderately (rated three) impaired in your ability to:

(a) Communicate and perform effectively in a work setting with public contact;

(b) Communicate and perform effectively in a work setting with limited public contact; and

(c) Markedly (rated four) impaired in your ability to maintain appropriate behavior in a work setting.

[Statutory Authority: RCW 74.04.050, 74.04.055, 74.04.057, 74.08.090, and 74.04.005. 10-08-036, 388-448-0080, filed 3/31/10, effective 5/1/10. 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 10-08-036, filed 3/31/10, effective 5/1/10)

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 having strength, flexibility, and mobility to lift, carry, stand or walk as needed to fulfill job duties in the following work levels. For this section, "occasionally" means less than one-third of the time and "frequently" means one-third to two-thirds of the time.

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 as posted on the Occupational Information Network (O*NET).


If you are able to: Then we assign this exertion level
(a) Lift no more than two pounds or unable to stand or walk. Severely limited
(b) Lift ten pounds maximum and frequently lift or carry lightweight articles. Walking or standing only for brief periods. Sedentary
(c) Lift twenty pounds maximum and frequently lift 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. Sitting and using pushing or((/)) pulling arm or leg movements most of the day. Light
(d) Lift fifty pounds maximum and frequently lift or carry up to twenty-five pounds. Medium
(e) Lift one hundred pounds maximum and frequently lift 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, and 74.04.005. 10-08-036, 388-448-0090, filed 3/31/10, effective 5/1/10. 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 10-08-036, filed 3/31/10, effective 5/1/10)

WAC 388-448-0100   PEP step VI -- How we evaluate capacity to perform relevant past work.   If your overall severity rating is moderate (three) or marked (four) 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'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 ((tenth)) eleventh grade; or

(c) 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:

(a) Defined as gainful employment per WAC 388-448-0010((.));

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

(c) You performed long enough to 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.

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

(4) After considering vocational factors, we deny incapacity when you have:

(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.

(5) We approve incapacity when you are fifty-five years of age or older and don't have the physical or mental ability to perform past work.

[Statutory Authority: RCW 74.04.050, 74.04.055, 74.04.057, 74.08.090, and 74.04.005. 10-08-036, 388-448-0100, filed 3/31/10, effective 5/1/10. 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 10-08-036, filed 3/31/10, effective 5/1/10)

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.

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


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

(2) We approve incapacity when you have a (moderate three) or marked (four) mental health impairment and 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:

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

(i) Be aware of normal hazards and take appropriate precautions.

(ii) Communicate and perform effectively in a work setting with public contact.

(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) Be aware of normal hazards and take appropriate precautions.

(ii) Communicate and perform effectively in a work setting with limited public contact.

(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) Communicate and perform effectively in a work setting with limited public contact.))

Social limitation Age
(a) Moderately impaired (rated three) in your ability to:

(i) Communicate and perform effectively in a work setting with limited public contact; and

(ii) Maintain appropriate behavior in a work setting.

Fifty years and older
(b) You have a severe (five) impairment in your ability to:

(i) Communicate and perform effectively in a work setting with public contact; or

(ii) Communicate and perform effectively in a work setting with limited public contact.

Any age
(c) A mental disorder of marked severity (rated four);

(i) One or more severe (rated five) mental impairment symptoms; and

(ii) Moderately impaired (rated three) in the ability to communicate and perform effectively in a work setting with public or limited public contact.

Any age

(3) We approve incapacity when you have ((at least a moderate (three) mental health impairment, a moderate (three) physical impairment and 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,)) both mental and physical impairments and 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:


((Work Level))

Your age

Your education Your other restrictions
((Sedentary)) Any age Any level (a) 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)) communicate and perform effectively in a work setting with limited public contact; and

(b) You are markedly impaired in your ability to communicate and perform effectively in a work setting with public contact.

((Sedentary)) Fifty or older Limited education (((b) You are moderately impaired in your ability to:

(i) Communicate and perform effectively in a work setting with public contact)) (c) Restricted to medium work level or less.

((Light)) Any age Limited education (((c) 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)) (d) Restricted to light work level.

((Light)) (((d) You are markedly impaired in your ability to:

(i) Communicate and perform effectively in a work setting with public contact.))

((Medium)) (((e) 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) We deny incapacity if we decide you don't meet the criteria listed above.

[Statutory Authority: RCW 74.04.050, 74.04.055, 74.04.057, 74.08.090, and 74.04.005. 10-08-036, 388-448-0110, filed 3/31/10, effective 5/1/10. 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.]

Reviser's note: The typographical error in the above section occurred in the copy filed by the agency and appears in the Register pursuant to the requirements of RCW 34.08.040.

Washington State Code Reviser's Office