388-447-0001 (1)(c)

We reiterate our request to add "cognitive" to the definition of impairment so that the language reads, "due to physical, mental, or cognitive impairment."

Not incorporated. The term mental disorder or impairment by definition includes cognitive/neurocognitive disorders.

 

 

The Diagnostic and Statistical Manual of Mental Disorders – Fifth Edition (DSM-5) defines a mental disorder as follows:

 

 

"A mental disorder is a syndrome characterized by clinically significant disturbance in an individual's cognition, emotional regulation, or behavior that reflects a dysfunction in the psychological, biological, or developmental process underlying mental functioning."

 

 

Including cognitive impairment in addition to mental impairment would be unnecessary and redundant.

388-447-0001 (1)(c)

Our concern remains that starting the ninety day duration count from the application date instead of the date incapacity began (as is practiced now with SSA benefits) will result in DSHS denying HEN-referral eligibility to some people the legislature intended to benefit from HEN. SHB 2069 bases eligibility on incapacity from gainful employment due to incapacity "that will likely continue for a minimum of ninety days." As stated in our previous comment, limiting this period to ninety days post-application may result in inappropriate denials. One example is people who might need only a month or two of HEN at the tail end of a ninety plus day incapacity to prevent or end homelessness and allow stability for rehabilitation. Another example is people whose incapacity meets the HEN or even ABD duration requirements but who do not currently have objective medical evidence to establish this an [and] need the stability of HEN benefits to obtain objective medical evidence.

Not incorporated. The recommended change is not consistent with statutory requirements, which limit eligibility to individuals with impairments "that will likely continue for 90 days." The adopted rules are consistent with ESB [SHB] 2069 Section 3 (1)(a), which requires the department to base eligibility on prospective duration.

388-447-0001(4)

Typo "pay of profit" should be "pay or profit."

Incorporated.

388-447-0001 (6)(e) and (f)

Proposed WAC 388-447-0001 (6)(e) and (f) permit a HEN referral to be authorized if the individual meets the noted requirement and was released within the past thirty days. Under WAC 182-508-0010 (2)(a), the agency or designee determines the individual in [is] incapacitated if the individual was released within the past ninety days. We understand the department's concern that HEN referral eligibility extends twelve months before the department must review incapacity. However, people being released from ALTSA-based institutional care or inpatient mental health treatment facilities are likely to require significant time and assistance to gain stability and reintegrate into the community. This provision deals only with eligibility for referral, not provision of actual benefits. Local HEN benefit priorities and criteria will determine who needs/qualifies for actual assistance. Decreasing the eligibility window so drastically will have an unduly harsh impact on some of the most vulnerable and marginal HEN applicants and remove decision-making flexibility from local contracted HEN providers. We strongly urge the department to retain the ninety day criterion currently in the MCS regulation.

Incorporated.

388-447-0001 (7) and (8)

Thank you for incorporating many of our comments related to the impact of substance use on eligibility for HEN referral. It is an area in which legal advocates continue to see a lot of confusion resulting from an inaccurate denial or termination of benefits. One problem is using the term "substance use" which is very broad and could include use that does not implicate addiction or use of prescription drugs. This term results in inconsistent determinations based on diverse interpretation. We look forward to working with you on policy, training, and field communication to clarify these requirements.

In subsection (8), the language should be consistent with the authorizing statute as follows: "we consider… if you are disabled primarily because of drug or alcohol use or addiction." SHB 2069, Sec. 3 (2)(a) mentions only drug or alcohol use or addiction. Broadening the ineligibility to "use or addiction" exceeds this statutory authority.

Incorporated recommended change to subsection (8).

We look forward to working with you to ensure this requirement is applied consistently.

388-447-0001(9)

In response to our request to add "using judgment" to the list of basic work activities, you responded that using judgment is not a basic work activity.

Note this comment appears to pertain to WAC 388-447-0001(10).

 

We disagree, and we encourage you to look at this section of the SSA policy manual on determining disability: https://secure.ssa.gov/apps10/poms.nsf/1nx/0425020010!opendocument

and this social security ruling: http://www.ssa.gov/OP_Home/rulings/di/01/SSR96-09-di-01.html.

The first states in part:

2. Mental Abilities Needed For Any Job

a. Understanding, carrying out, and remembering simple instructions

•      The ability to remember locations and worklike procedures.

Thank you for clarifying this issue and proving [providing] links to relevant SSA policy. While there is no requirement in SHB 2069 that HEN referral eligibility be based on whether an individual is likely to meet SSA disability criteria, consistency with both SSA and ABD rules is an important policy goal.

 

Incorporated by adding "using judgment" to WAC 388-447-0001(10).

No corresponding change is necessary for WAC 388-447-0070 or 388-447-0100 since the department already considers the basic work activity of "using judgment" by evaluating an impairment's impact on an individual's ability to "make simple work-related decisions" and "be aware of normal hazards and take appropriate precautions" (the two bullets including [included] under Use of judgment in the POMS manual link provided).

 

•      The ability to understand and remember very short and simple instructions.

•      The ability to carry out very short and simple instructions.

•      The ability to maintain concentration and attention for extended periods (the approximately two hour segments between arrival and first break, lunch, second break, and departure).

 

•      The ability to perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances.

•      The ability to sustain an ordinary routine without special supervision.

•      The ability to work in coordination with or proximity to others without being (unduly) distracting to them.

•      The ability to complete a normal workday or workweek without interruptions from psychologically based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods.

 

b. Use of judgment

 

 

•      The ability to make simple work-related decisions.

•      The ability to be aware of normal hazards and take appropriate precautions.

 

 

c. Responding appropriately to supervision, coworkers, and usual situations

 

 

•      The ability to ask simple questions or request assistance.

•      The ability to accept instructions and respond appropriately to criticism from supervisors.

•      The ability to get along with coworkers or peers without (unduly) distracting them or exhibiting behavioral extremes.

 

 

d. Dealing with changes in a routine work setting – the ability to respond appropriately to changes in (a routine) work setting.

 

 

SSA's manual identifies only four mental abilities needed for every job, and use of judgment is one of them.

 

 

The relevant part of the second link is:

Mental limitations or restrictions: A substantial loss of ability to meet any one of several basic work-related activities on a sustained basis (i.e., eight hours a day, five days a week, or an equivalent work schedule), will substantially erode the unskilled sedentary occupational base and would justify a finding of disability. These mental activities are generally required by competitive, remunerative, unskilled work:

 

 

•      Understanding, remembering, and carrying out simple instructions.

•      Making judgments that are commensurate with the functions of unskilled work--i.e., simple work-related decisions.

•      Responding appropriately to supervision, coworkers and usual work situations.

•      Dealing with changes in a routine work setting.

 

 

A less than substantial loss of ability to perform any of the above basic work activities may or may not significantly erode the unskilled sedentary occupational base. The individual's remaining capacities must be assessed and a judgment made as to their effects on the unskilled occupational base considering the other vocational factors of age, education, and work experience. When an individual has been found to have a limited ability in one or more of these basic work activities, it may be useful to consult a vocational resource.

 

 

We reiterate our request to add "using judgment" to the list of basic work activities in this subsection and anywhere else it appears.

 

388-447-0010 (3)(a)

We recommend adding the words, "or any longer period customarily relied upon to support current diagnosis of a specific impairment;". Our prior comments noted that the ABD provision at WAC 388-449-0015 (3)(a) considers diagnoses from within the past five years. An even longer time limit, or none at all, should be adopted for diagnoses of conditions that are chronic, degenerative, or unlikely to change (e.g. mental retardation, cerebral palsy). Allowing DSHS to rely on older diagnoses of this type will save limited resources and advance legislative intent.

Partially incorporated. WAC 388-447-0010 (3)(a) updated to require a diagnosis from within the past five years rather than twelve months as proposed.

This change is consistent with both SSA and ABD requirements and helps to support the concurrent ABD/HEN referral determination process.

 

Your response noted the need for an examination from the past twelve months to establish current incapacity. That makes sense, but the way this subsection is currently written, it requires that the diagnosis be based on such an exam. In many cases, the diagnosis has been established for years. The purpose of a recent exam is to verify the degree to which the diagnoses impact the person's ability to engage in substantial gainful activity.

 

388-447-0030 (1)(d) and (3)(b)

See comment to proposed WAC 388-447-0001 (1)(c) regarding ninety day duration.

Not incorporated. See response to WAC 388-447-0001 (1)(c) comment.

388-447-0030 (3)(c)

We recommend removing this subsection as unnecessary and likely to result in inaccurate denials before any analysis of medical evidence. Based on our experience with HEN and ABD incapacity issues, many workers will use this "reason" for denial inappropriately (as they currently do with the ABD SEP Step II threshold). What situation is this meant to cover? If it is intended for situations in which there is no objective medical evidence, it should say that, and so should the client's denial letter. Retaining this provision would result in inadequate denial notices because there would not be enough information to explain to the applicant why the information the department reviewed fails to meet incapacity requirements.

Partially incorporated for readability and clarity.

WAC 388-447-0030 revised as follows:

"(3) We deny incapacity if:

(a) The reported impairment isn't expected to last ninety days or more from the date of application; or

(b) We don't have the medical evidence detailed in WAC 388-447-0010, which is necessary to determine incapacity."

 

Denial notices are outside the scope of the rule development process.

388-447-0110 (1) and (2)

Our August comments were primarily targeted at clarifying confusing references to "period of eligibility" and "authorization period" without defining those terms. The following language we discussed at our meeting on August 27, 2013, does not change the meaning of the proposed rule, clarifies terminology, and simplifies the language:

Partially incorporated for clarity and readability.  

Subsection (1) now reads:

"If we determine you are incapacitated and you meet the eligibility requirements in WAC 388-400-0070, you are eligible for referral to the housing and essential needs (HEN) program for a maximum period of twelve months. This is your incapacity authorization period."

 

(1) The maximum authorization period of eligibility for referral to the housing and essential needs (HEN) program is twelve months. We must review your incapacity at the end of your authorization period.

 

(2) You must give us current medical evidence before the end of your authorization period. Your HEN referral eligibility ends unless the evidence demonstrates there was no material improvement in your impairment. No material improvement means that your impairment continues to meet the incapacity criteria in WAC 388-447-0001.

Subsection (2) now reads:

"Your HEN referral eligibility stops at the end of your incapacity authorization period unless…."

388-447-0120 (3)(b)

This allows for a finding of good cause for not following through with a chemical dependency assessment if the outpatient treatment needed isn't available in the county where the client lives. Many counties are large, and many counties do not have adequate public transportation. Expecting a client in Packwood to travel to Chehalis for outpatient treatment weekly or more is not reasonable. Instead of "the county where you live," we recommend using the language included in the next subsection, "at a location you can reasonably access."

Not incorporated.

The good cause provisions outlined in WAC 388-447-0120(3) maintain the distinction drawn between inpatient and outpatient chemical dependency treatment in SHB 2069 Section 3 (2)(c).

The statute draws a distinction between what constitutes good cause for failure to follow through with inpatient treatment and what constitutes good cause for failure to follow through with outpatient treatment. For outpatient treatment, good cause exists if the treatment isn't available in the county where the individual lives. For inpatient treatment, good cause exists if the treatment isn't available at a location the individual can reasonably access. The department interprets the phrase "a location the individual can reasonably access" to include locations in counties other than the county in which the individual lives. Because outpatient treatment involves many trips to and from treatment, the department elects to maintain the more lenient standard based on the county where the individual lives.