WSR 13-19-065 PROPOSED RULES DEPARTMENT OF SOCIAL AND HEALTH SERVICES (Economic Services Administration) [Filed September 17, 2013, 9:18 a.m.]
Original Notice.
Preproposal statement of inquiry was filed as WSR 13-15-122.
Title of Rule and Other Identifying Information: The department is proposing to amend WAC 388-442-0010 How does being a fleeing felon impact my eligibility for benefits? and creating WAC 388-400-0065 Housing and essential needs (HEN), 388-400-0070 Who is eligible for referral to the housing and essential needs (HEN) program?, 388-406-0056 When does my eligibility for referral to the housing and essential needs (HEN) program begin?, 388-408-0070 Who is included in my assistance unit when the department determines eligibility for referral to the housing and essential needs (HEN) program?, 388-447-0001 What are the incapacity requirements for referral to the housing and essential needs (HEN) program?, 388-447-0005 What evidence does the department consider to determine incapacity?, 388-447-0010 What medical evidence do I need to provide?, 388-447-0020 How does the department assign severity ratings to my impairments?, 388-447-0030 Progressive evaluation process step I—How does the department review the medical evidence required for an incapacity determination?, 388-447-0040 Progressive evaluation process step II—How does the department determine the severity of mental impairments?, 388-447-0050 Progressive evaluation process step III—How does the department determine the severity of physical impairments?, 388-447-0060 Progressive evaluation process step IV—How does the department determine the severity of multiple impairments?, 388-447-0070 Progressive evaluation process step V—How does the department determine the impact of a mental impairment on my ability to function in a work environment?, 388-447-0080 Progressive evaluation process step VI—How does the department determine the impact of a physical impairment on my ability to function in a work setting?, 388-447-0090 Progressive evaluation process step VII—How does the department determine ability to perform past work?, 388-447-0100 Progressive evaluation process step VIII—How does the department determine ability to perform other work?, 388-447-0110 When does my eligibility for referral to the housing and essential needs (HEN) program end?, 388-447-0120 How does alcohol or drug dependence affect my eligibility for referral to the housing and essential needs (HEN) program?, 388-450-0113 Does the department allocate income of a HEN referral recipient to legal dependents?, 388-450-0138 Does the department allocate income of an ineligible spouse to a housing and essential needs (HEN) referral recipient?, and 388-450-0178 Does the department offer an income deduction for housing and essential needs (HEN) referral applicants and recipients as an incentive to work?, and any other related rules as required by SHB 2069.
Hearing Location(s): Office Building 2, Lookout Room, 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), on November 5, 2013, at 10:00 a.m.
Date of Intended Adoption: Not earlier than November 6, 2013.
Submit Written Comments to: DSHS Rules Coordinator, P.O. Box 45850, Olympia, WA 98504, e-mail DSHSRPAURulesCoordinator@dshs.wa.gov, fax (360) 664-6185, by 5 p.m., November 5, 2013.
Assistance for Persons with Disabilities: Contact Jennisha Johnson, DSHS rules consultant, by October 22, 2013, TTY (360) 664-6178 or (360) 664-6094 or by e-mail at jennisha.johnson@dshs.wa.gov.
Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: The department is proposing to amend WAC 388-442-0010 and create WAC 388-400-0065, 388-400-0070, 388-406-0056, 388-408-0070, 388-447-0001, 388-447-0005, 388-447-0010, 388-447-0020, 388-447-0030, 388-447-0040, 388-447-0050, 388-447-0060, 388-447-0070, 388-447-0080, 388-447-0090, 388-447-0100, 388-447-0110, 388-447-0120, 388-450-0113, 388-450-0138, and 388-450-0178 in order to comply with SHB 2069, Laws of 2013.
Reasons Supporting Proposal: These changes are necessary to conform to SHB 2069, Laws of 2013, which requires the department to determine eligibility for referral to the HEN program.
Statutory Authority for Adoption: SHB 2069, RCW 74.04.005, 74.04.050, 74.04.055, 74.04.057, 74.08.090, 74.08A.100, 74.04.770, 74.08.025, 74.62.030.
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: Shane Riddle, 712 Pear Street S.E., Olympia, WA 98503, (360) 725-4352.
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.
A cost-benefit analysis is not required under RCW 34.05.328. These amendments and proposed rules 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 riles [rules] concerning liability for care of dependents."
September 11, 2013
Katherine I. Vasquez
Rules Coordinator
NEW SECTION
WAC 388-400-0065 Housing and essential needs (HEN)
(1) For the purposes of this chapter: (a) "Commerce" means the Washington state department of commerce. (b) "Department" means the department of social and health services (DSHS). (c) "Housing support" means assistance provided to maintain existing housing or to obtain housing or utilities. (d) "Essential needs items" means personal health and hygiene items, cleaning supplies, transportation passes, and other personal needs items. (2) What is housing and essential needs (HEN)? Within available funds, HEN provides housing support and essential needs items to eligible individuals. (3) Who administers HEN? HEN is administered by commerce through its network of local contracted HEN providers. (4) Who determines eligibility for HEN? (a) The department determines eligibility for referral to the HEN program and sends you a notice to say whether you are eligible for referral. (b) After the department determines you eligible for a HEN referral, the local HEN provider decides whether you can receive HEN and what benefits you can receive based on guidelines established by commerce. (c) Within their funding, the local HEN provider can continue your benefits as long as you remain eligible for referral to the HEN program. (5) If your notice from the department says you are eligible for HEN referral, you must contact your local HEN provider to apply for housing supports and essential needs items. Referral to the HEN program does not guarantee that you will receive HEN.
NEW SECTION
WAC 388-400-0070 Who is eligible for referral to the housing and essential needs (HEN) program?
(1) You are eligible for referral to the housing and essential needs (HEN) program if you: (a) Apply for cash assistance as detailed in WAC 388-406-0010; (b) Complete an interview with the department; (c) Are incapacitated as defined in WAC 388-447-0001 through 388-447-0100; (d) Are at least eighteen years old or, if under eighteen, legally emancipated or a member of a married couple; (e) Are in financial need according to income rules in chapter 388-450 WAC and resource requirements in RCW 74.04.005 and chapter 388-470 WAC. We determine who is in your assistance unit according to WAC 388-408-0070; (f) Have countable income, as defined in WAC 388-450-0162, at or below the monthly income limits defined in WAC 388-478-0090; (g) Meet the citizenship/alien status requirement for ABD cash assistance under WAC 388-424-0015; (h) Meet the Social Security number verification requirement for cash assistance under WAC 388-476-0005; (i)Meet the residency requirement for cash assistance under WAC 388-468-0005; (j) Meet verification requirements for cash assistance detailed in WAC 388-490-0005. (k) To remain eligible for HEN referral, you must also: (i) Report changes in your circumstances as required for cash assistance under WAC 388-418-0007; and (ii) Complete and return eligibility reviews we send you under WAC 388-434-0005. (2) You are not eligible for referral to the HEN program if you: (a) Are eligible for the aged, blind, or disabled (ABD) cash assistance program; (b) Are eligible for the pregnant women assistance (PWA) program; (c) Are eligible for temporary assistance for needy families (TANF) program; (d) Refuse or fail to meet a TANF rule without good cause; (e) Refuse or fail to cooperate in obtaining federal aid assistance, including but not limited to medicaid, without good cause; (f) Refuse or fail to participate in drug or alcohol treatment as required in WAC 388-447-0120; (g) Are eligible for supplemental security income (SSI) benefits and receiving a state supplemental payment (SSP) under WAC 388-474-0012; (h) Are an ineligible spouse of an SSI recipient; (i) Refuse or fail to follow a social security administration (SSA) program rule or application requirement without good cause and SSA denied or terminated your benefits; (j) Are terminated from ABD for refusing or failing to sign an interim assistance reimbursement authorization agreement under WAC 388-400-0060; or (k) Are fleeing to avoid prosecution of, or to avoid custody or confinement for conviction of, a felony, or an attempt to commit a felony as described in WAC 388-442-0010. (l) Are disqualified from receiving cash assistance due to a conviction related to unlawful practices in obtaining cash assistance as described in WAC 388-446-0005. (3) If you reside in a public institution and meet all other requirements, your eligibility for referral to the HEN program 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. (a) You may be eligible for referral to the HEN program if you are: (i) A patient in a public medical institution; or (ii) A patient in a public mental institution and are sixty-five years of age or older. (b) You aren't eligible for referral to the HEN program if 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.
NEW SECTION
WAC 388-406-0056 When does my eligibility for referral to the housing and essential needs (HEN) program begin?
This section applies to referrals to the housing and essential needs (HEN) program. (1) If you meet the eligibility requirements in WAC 388-400-0070, HEN referral eligibility begins: (a) The date we have enough information to make an eligibility decision; or (b) No later than the forty-fifth day from the date we receive your application.
NEW SECTION
WAC 388-408-0070 Who is included in my assistance unit when the department determines eligibility for referral to the housing and essential needs (HEN) program?
(1) If you are an adult who is incapacitated as defined in WAC 388-447-0001, you are included in the housing and essential needs (HEN) referral assistance unit (AU). (2) If you are married and live with your spouse, we decide who to include in the AU based on who is incapacitated: (a) If both spouses are incapacitated as defined in WAC 388-447-0001, we include both spouses in the same AU. (b) If only one spouse is incapacitated, we include only the incapacitated spouse in the AU. We count some of the income of the other spouse under WAC 388-450-0138. (3) If you are unmarried, you are the only person in your AU.
AMENDATORY SECTION (Amending WSR 12-10-042, filed 4/27/12, effective 6/1/12)
WAC 388-442-0010 How does being a fleeing felon impact my eligibility for benefits?
(1) You are a fleeing felon if you are fleeing to avoid prosecution, custody, or confinement for a crime or an attempt to commit a crime that is considered a felony in the place from which you are fleeing. (2) If you are a fleeing felon, or violating a condition of probation or parole as determined by an administrative body or court that has the authority to make this decision, you are not eligible for TANF/SFA, PWA, ABD cash, referral to the HEN program, or Basic Food benefits.
NEW SECTION
WAC 388-447-0001 What are the incapacity requirements for referral to the housing and essential needs (HEN) program?
(1) For the purposes of this chapter, the following definitions apply: (a) "We" and "us" mean the department of social and health services. (b) "You" means the applicant or recipient. (c) "Incapacitated" means you cannot be gainfully employed due to a physical or mental impairment that is expected to continue for at least ninety days from the date you apply. (d) "Mental impairment" means a diagnosable mental disorder. (e) "Physical impairment" means a diagnosable physical illness. (2) You must be incapacitated in order to receive a HEN referral. (3) We determine if you are incapacitated when: (a) You apply for a referral to the HEN program; (b) You become gainfully employed; (c) You obtain work skills by completing a training program; (d) We receive new information that indicates you may be able to work; or (e) Your incapacity authorization period ends. (4) We deny your HEN referral if you are gainfully employed at the time of application for referral to the HEN program. "Gainfully employed" means you are performing, in a regular predictable manner, an activity usually done for pay of profit and earning more than the substantial gainful activity standard defined by the social security administration (SSA). (5) We do not consider you to be gainfully employed if you are working: (a) Under special conditions that go beyond providing reasonable accommodation; 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. (6) We determine you are incapacitated if you are: (a) Approved through the progressive evaluation process (PEP). The PEP is a sequence of eight steps described in WAC 388-447-0030 through 388-447-0100; or (b) Eligible for services from the developmental disabilities administration (DDA); (c) Diagnosed as having an intellectual disability based on a full scale score of seventy or lower on the Wechsler adult intelligence scale (WAIS); (d) Eligible for long-term care services from aging and long-term support administration (ALTSA); (e) Release from a medical institution where you received services from ALTSA within the past 30 days; or (f) Released from inpatient treatment for a mental impairment within the past 30 days if: (i) The release from inpatient treatment was not against medical advice; and (ii) You were discharged into outpatient mental health treatment. (7) If you have a physical or mental impairment, are impaired by alcohol or drug addiction, and do not meet the other incapacity criteria in section 6 (b) through (f), we decide if you are incapacitated by applying the PEP. We do not consider symptoms related to substance use or a diagnosis of chemical dependency when determining incapacity when we have evidence substance use is material to your impairment(s). (8) We consider substance use material to your impairment(s) if you are disabled primarily because of drug or alcohol use or addiction. (9) If your impairment will persist at least sixty days after you stop using drugs or alcohol, we do not consider substance use to be material to your impairment(s). (10) 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; and other physical functions (including manipulative or postural functions such as pushing, pulling, reaching, handling, stooping, or crouching), seeing, hearing, communicating, remembering, understanding and following instructions, responding appropriately to supervisors and co-workers, tolerating the pressures of a work setting, maintaining appropriate behavior, and adapting to changes in a routine work setting.
NEW SECTION
WAC 388-447-0005 What evidence does the department consider to determine incapacity?
We accept medical evidence from the following sources when considering incapacity: (1) For a physical impairment: (a) A physician, which includes: (i) Medical doctor (M.D.); and (ii) Doctor of osteopathy (D.O.); (b) An advanced registered nurse practitioner (ARNP) for physical impairments that are within their area of certification to treat; (c) A Physician's Assistant (P.A.); (d) A Doctor of optometry (O.D.) for visual acuity impairments; (e) Doctor of podiatry (D.P.) for foot disorders; (f) Doctor of dental surgery (D.D.S.) or doctor of medical dentistry (D.M.D.) for tooth abscesses or temporomandibular joint (TMJ) disorders; or (g) The chief of medical administration of the Veterans' Administration, or their designee, as authorized in federal law. (2) For a mental impairment: (a) A psychiatrist; (b) A psychologist; (c) An ARNP certified in psychiatric nursing; or (d) At the department's discretion: (i) A person identified as a mental health professional within the regional support network mental health treatment system provided the person's training and qualifications at a minimum include having a master's degree and two years of mental health treatment experience; or (ii) A physician who is currently treating you for a mental impairment. (3) We do not accept medical evidence from the medical professionals listed in (1) and (2) above, unless they are licensed in Washington State or the state where the examination was performed. (4) "Supplemental medical evidence" means information from a health professional not listed in (1) or (2) above who can provide supporting documentation for impairments established by a medical professional listed in (1) or (2) above. Supplemental medical evidence sources include: (a) Health professionals who have conducted tests or provided ongoing treatment to you, such as a physical therapist, chiropractor, nurse, naturopath, audiologist, or licensed social worker; (b) Workers at state institutions and agencies who are not health professionals and are providing or have provided medical or health-related services to you; or (c) Chemical dependency professionals (CDPs) when requesting information on the effects of alcohol or drug abuse. (5) "Other evidence" means information from other sources not listed above who can provide supporting documentation of functioning for impairments established by acceptable medical sources in subsections (1) or (2) of this section. Sources of "other evidence" include public and private agencies, schools, parents, caregivers, employers, and practitioners such as social workers.
NEW SECTION
WAC 388-447-0010 What medical evidence do I need to provide?
You must provide medical evidence of your impairment(s) and how your impairment(s) affects your ability to perform regular and continuous work activity. Medical evidence must be in writing and be clear, objective and complete. (1) Objective evidence for physical impairments means: (a) Laboratory test results; (b) Pathology reports; (c) Radiology findings including results of X rays and diagnostic imaging scans; (d) Clinical finding including, but not limited to, ranges of joint motion, blood pressure, temperature or pulse; and documentation of a physical examination; or (e) Hospital history and physical reports and admission and discharge summaries; or (f) Other medical history and physical reports related to your current impairments. (2) Objective evidence for mental impairments means: (a) Clinical interview observations, including objective mental status exam results and interpretation. (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). (c) Hospital, outpatient and other treatment records related to your current impairments. (d) Testing results, if any, including: (i) Description and interpretation of tests of memory, concentration, cognition or intelligence; or (ii) Interpretation of medical tests to identify or exclude a connection between the mental impairment and physical illness. (3) Medical evidence sufficient for an incapacity determination must be from a medical professional described in WAC 388-447-0005 and must include: (a) A diagnosis for the impairment, or impairments, based on an examination performed within twelve months of application; (b) A clear description of how the impairment relates to your ability to perform the work-related activities listed in WAC 388-447-0001; and (c) Documentation of how the impairment, or impairments, is currently limiting your ability to work based on an examination performed within the ninety days of the date of application or incapacity review. (4) We consider documentation in addition to objective evidence to support the medical evidence provider's opinion that you are unable to perform substantial gainful employment, such as proof of hospitalization. (5) If you can't obtain medical evidence sufficient for us to determine if you are incapacitated without cost to you, and you meet the other eligibility conditions defined in WAC 388-447-0001, we pay the costs to obtain objective evidence based on our published payment limits and fee schedules.
NEW SECTION
WAC 388-447-0020 How does the department assign severity ratings to my impairments?
(1) "Severity rating"is a rating of the extent of your impairment and how it impacts your ability to perform the basic work activities detailed in WAC 388-447-0001. Severity ratings are assigned in Steps II through IV of the progressive evaluation process (PEP). The following chart provides a description of levels of limitations on work activities and the severity ratings that would be assigned to each.
(2) We use the description of how your condition impairs your ability to perform work activities given by the medical evidence provider to establish severity ratings when the impairments are supported by, and consistent with, the objective medical evidence. (3) A contracted doctor reviews your medical evidence and the ratings assigned to your impairment when: (a) The medical evidence indicates functional limitations consistent with at least a moderate physical or mental impairment; and (b) Your impairment has lasted, or is expected to last, nine months or more with available treatment. (4) The contracted doctor reviews the medical evidence, severity ratings, and functional assessment to determine whether: (a) The medical evidence is objective and sufficient to support the findings of the medical evidence provider; (b) The description of impairments is supported by the medical evidence; and (c) The severity rating, duration, and assessment of functional limitations assigned by DSHS are consistent with the medical evidence. (5) If the medical evidence provider's description of your impairments is not consistent with the objective medical evidence, we will: (a) Assign a severity rating, duration, and functional limitations consistent with the objective medical evidence; (b) Clearly describe why we rejected the medical provider's opinion; and (c) Identify the medical evidence used to make the determination.
NEW SECTION
WAC 388-447-0030 Progressive evaluation process step I — How does the department review the medical evidence required for an incapacity determination?
(1) When we receive your medical evidence, we review it to see if it is sufficient to decide whether you meet the incapacity requirements. It must: (a) Contain sufficient information under WAC 388-447-0010; (b) Be written by an authorized medical professional described in WAC 388-447-0005; (c) Document a potentially incapacitating condition; and (d) Indicate an impairment is expected to last at least ninety days from the application date. (2) If the information received isn't clear, we may require more information before we decide if you are incapacitated. As examples, we may require you to get more medical tests or be examined by a medical specialist. (3) We deny incapacity if: (a) There is only one impairment and the severity rating is less than three; (b) The reported impairment isn't expected to last ninety days or more from the date of application; (c) We don't have clear and objective medical evidence to approve incapacity.
NEW SECTION
WAC 388-447-0040 Progressive evaluation process step II—How does the department determine the severity of mental impairments?
If you are diagnosed with a mental impairment by a professional described in WAC 388-447-0005, we use information from the medical evidence 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 professional that show how your impairment affects your ability to perform basic work-related activities. (2) We do not consider diagnoses or symptoms of alcohol or substance use or dependency when the only impairment supported by objective medical evidence is drug or alcohol addiction. (3) If you are diagnosed with an intellectual disability, the diagnosis must be based on the Wechsler adult intelligence scale (WAIS). The following test results determine the severity rating:
(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. (5) We base the severity of an impairment diagnosed as a mood, anxiety, thought, memory, personality, 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 most recent version of the Diagnostic and Statistical Manual of Mental Disorders (DSM). (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:
(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:
(8) We deny incapacity when you haven't been diagnosed with a significant physical impairment and the overall severity of your mental impairment is one or two; (9) We approve incapacity when your overall mental severity rating is severe (5).
NEW SECTION
WAC 388-447-0050 Progressive evaluation process step III—How does the department determine the severity of physical impairments?
"Severity of a physical impairment" means the degree that an impairment restricts you from performing the basic work-related activities in WAC 388-447-0001. Severity ratings range from one to five, with five being the most severe. We assign severity ratings based on the table in WAC 388-447-0020. (1) We assign to each physical impairment a severity rating that is supported by medical evidence. (2) If your physical impairment is rated two, and there is no mental impairment or a mental impairment that is rated one, we deny incapacity. (3) If your physical impairment is rated five, we approve incapacity.
NEW SECTION
WAC 388-447-0060 Progressive evaluation process step IV—How does the department determine the severity of multiple impairments?
(1) If you have more than one impairment, we determine the overall severity rating by deciding if your impairments have a combined effect on your ability to be gainfully employed. (2) When you have two or more diagnosed impairments that limit work activities, we assign an overall severity rating as follows:
(3) We deny incapacity at this step when: (a) The overall severity rating is two; or (b) Substance use is material to your impairment under WAC 388-447-0001 and your overall severity rating is two when symptoms related to substance use or a diagnosis of chemical dependency are not considered. (4) We approve incapacity at this step when the overall severity rating is five.
NEW SECTION
WAC 388-447-0070 Progressive evaluation process step V—How does the department determine the impact of a mental impairment on my ability to function in a work environment?
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 very short and simple instructions. (b) Understand, remember, and persist in tasks by following detailed instructions. (c) Perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances without special supervision. (d) Learn new tasks. (e) Perform routine tasks without special supervision. (f) Adapt to changes in a routine work setting. (g) Make simple work-related decisions. (h) Be aware of normal hazards and take appropriate precautions. (i) Ask simple questions or request assistance. (j) Communicate and perform effectively in a work setting. (k) Complete a normal workday and workweek without interruptions from psychologically based symptoms. (l) Set realistic goals and plan independently. (m) Maintain appropriate behavior in a work setting. (2) We approve incapacity when we have objective medical evidence 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 your ability to understand, remember, and persist in tasks following complex instructions; and at least markedly 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. (3) We approve incapacity when you are moderately impaired in your ability to: (a) Communicate and perform effectively in a work setting; and (b) Markedly impaired in your ability to maintain appropriate behavior in a work setting.
NEW SECTION
WAC 388-447-0080 Progressive evaluation process step VI—How does the department determine the impact of a physical impairment on my ability to function in a work setting?
In Step VI of the progressive evaluation process (PEP), we review the medical evidence provided and determine how your physical impairment limits your ability to work. This determination is then used in Steps VII and VIII of the PEP to determine your ability to perform either work you have done in the past or other work available in the national economy. (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 more than one third of the time or more. The following table is used to determine your exertion level. Included in this table is a strength factor, which represents 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).
(2) "Exertional 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. We consider any exertional limitations you have when 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 severity of the physical impairment is moderate, marked, or severe. All limitations must be substantiated by the medical evidence and directly related to the diagnosed impairment(s). (4) "Non-exertional physical limitation" means a restriction on work activities that does not affect strength, mobility, agility, or flexibility. Examples are: (a) Environmental restrictions which may 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.
NEW SECTION
WAC 388-447-0090 Progressive evaluation process step VII—How does the department determine ability to perform past work?
(1) If your overall severity rating is moderate (three) or marked (four) and we have not approved or denied incapacity by this stage of the progressive evaluation process (PEP), then we decide if you are able to do the same or similar work as you have done in the past. We consider your current physical and/or mental limitations when making this decision. Vocational factors are education, relevant work history, and age. (2) We evaluate your work experience to determine if you have relevant past work. "Relevant past work" means work that: (a) Is defined as gainful employment per WAC 388-447-0001; (b) Has been performed within the past five years; and (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 that you have, we compare: (a) The exertion, non-exertional, educational, and skill requirements detailed in the DOT for that job; and (b) Current cognitive, social, exertional, and non-exertion factors that significantly limit your ability to perform past work. (4) After considering vocational factors, we deny incapacity when we determine you: (a) Are able to perform any of your relevant past work; or (b) Recently acquired specific work skills through completion of schooling or training, for jobs within your current physical and mental capacities. (5) We approve incapacity at this step if you are fifty-five years of age or older and do not have the physical or mental ability to perform relevant past work.
NEW SECTION
WAC 388-447-0100 Progressive evaluation process step VIII—How does the department determine ability to perform other work?
When we determine you cannot do work you have done in the past, we consider your age, education, and other factors to decide if you are able to perform other work. (1) We evaluate education in terms of formal schooling or other training to acquire skills that enable you to meet job requirements. We classify your level of education as follows:
(2) We approve incapacity if you have a moderate or marked physical impairment and meet the criteria below:
(3) We approve incapacity when you have a moderate or marked mental health impairment and we have objective medical evidence that social or cognitive factors described in WAC 388-447-0070 interfere with working as follows:
(4) We approve incapacity when you have both a mental and physical impairment with at least a moderate overall severity and we have objective medical evidence that social or cognitive factors in WAC 388-447-0070 interfere with your ability to work as follows:
(5) If you do not meet the criteria listed above, and there are jobs you can do in the national economy, we will find you able to perform other work and take the following actions: (a) Deny incapacity; and (b) Give you examples of jobs you can do in the national economy despite your impairment(s). (3) If there are no jobs you can do in the national economy despite your impairment(s), we approve incapacity.
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. NEW SECTION
WAC 388-447-0110 When does my eligibility for referral to the housing and essential needs (HEN) program end?
(1) The maximum period of eligibility for referral to the housing and essential needs (HEN) program is twelve months before we must review incapacity. (2) Your HEN referral eligibility stops at the end of your incapacity authorization period unless you provide current medical evidence that demonstrates there was no material improvement in your impairment. No material improvement means that your impairment continues to meet the incapacity criteria detailed in WAC 388-447-0001. (3) The medical evidence must meet the criteria defined in WAC 388-447-0010. (4) We use medical evidence received after your incapacity authorization period has 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 authorization period; and (c) The evidence meets the incapacity criteria in WAC 388-447-0001. (5) Even if your condition has not improved, you aren't eligible for referral to the HEN program when: (a) We receive current medical evidence that doesn't meet the incapacity criteria in WAC 388-447-0001; or (b) We determine the prior decision that your condition met incapacity requirements was incorrect because: (i) The information we had was incorrect or not enough to show incapacity; or (ii) We didn't apply the rules correctly to the information we had at that time.
NEW SECTION
WAC 388-447-0120 How does alcohol or drug dependence affect my eligibility for referral to the housing and essential needs (HEN) program?
(1) When we have information that indicates you may be chemically dependent, you must complete a chemical dependency assessment unless you have good cause to not do so. (2) You must participate in drug or alcohol treatment if a certified chemical dependency professional indicates a need for treatment, unless you have good cause to not do so. (3) We consider the following to be good cause for not following through with a chemical dependency assessment or treatment: (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 where you live; or (c) The inpatient chemical dependency treatment you need isn't available at a location you can reasonably access. (4) If you refuse or fail to complete an assessment or treatment without good cause, your HEN referral eligibility will end following advance notification rules under WAC 388-458-0030.
NEW SECTION
WAC 388-450-0113 Does the department allocate income of a housing and essential needs (HEN) referral recipient to legal dependents?
This section applies to referrals to the Housing and Essential Needs (HEN) program. (1) The income of a HEN referral recipient is reduced by the following: (a) The HEN referral earned income disregard as specified in WAC 388-450-0178; and (b) The amount of current and/or back child support that the recipient is paying each month under a court or administrative order. If the monthly child support payment is greater than the department's standard of need, income is instead reduced by the department's standard of need. (2) When a HEN referral recipient in a medical institution, alcohol or drug treatment center, congregate care facility or adult family home has income, the income is countable to meet the recipient's needs after the income is reduced by the following: (a) The HEN referral program income limit for the nonapplying spouse and legal dependents living in the home; and (b) The standard of assistance the client is eligible for while residing in the alternative care facility.
NEW SECTION
WAC 388-450-0138 Does the department allocate income of an ineligible spouse to a housing and essential needs (HEN) referral recipient?
This section applies to referrals to the Housing and Essential Needs (HEN) program. (1) When a HEN referral recipient is married and lives with their nonapplying spouse, the following income is considered available to the client: (a) The remainder of the recipient's wages, retirement benefits and other income after reducing the total income by: (i) The HEN referral work incentive deduction, as specified in WAC 388-450-0178; and (ii) The amount of current and/or back child support that the recipient is paying each month under a court or administrative order. If the monthly child support payment is greater than the department's standard of need, income is instead reduced by the department's standard of need. (b) The remainder of the nonapplying spouse's wages, retirement benefits and other income after reducing the total income by: (i) An amount not to exceed the department's standard of need for court ordered or administratively ordered current or back child support for legal dependents; and (ii) The HEN referral income limit amount as specified under WAC 388-478-0090 which includes ineligible assistance unit members. (c) One-half of all other community income.
NEW SECTION
WAC 388-450-0178 Does the department offer an income deduction for housing and essential needs (HEN) referral applicants and recipients as an incentive to work?
We give a deduction to Housing and Essential Needs (HEN) referral recipients who receive income from work. The deduction applies to eligibility for referral to the HEN program only. We allow the following income deduction when we determine your eligibility for referral to the HEN program: We only count fifty percent of your monthly gross earned income. We do this to encourage work.
| ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||