WSR 00-10-003

PERMANENT RULES

DEPARTMENT OF

LABOR AND INDUSTRIES

[ Filed April 20, 2000, 2:10 p.m. , effective May 22, 2000 ]

Date of Adoption: April 20, 2000.

Purpose: In connection with the Governor's Executive Order 97-02 on regulatory improvement, the crime victims compensation program is conducting an intensive review of its administrative rules. These proposed amendments were written to clarify language, combine two definition sections into one and repeal the other.

Citation of Existing Rules Affected by this Order: Repealing WAC 296-31-020; and amending WAC 296-30-010, 296-30-130, and 296-31-012.

Statutory Authority for Adoption: WAC 296-30-010 Definitions is RCW 7.68.030; WAC 296-30-130 Lump sum is RCW 7.68.030, 7.68.070, 7.68.130, 51.32.050; and WAC 296-31-012 What mental health treatment and services are not authorized? is RCW 7.68.030, 51.04.030, 51.36.010.

Adopted under notice filed as WSR 00-02-091 on January 5, 2000.

Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 0, Repealed 0.

Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.

Number of Sections Adopted on the Agency's Own Initiative: New 0, Amended 3, Repealed 1.

Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 3, Repealed 1.

Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0; Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 0, Amended 3, Repealed 1. Effective Date of Rule: May 22, 2000.

April 20, 2000

Gary Moore

Director

OTS-3617.4


AMENDATORY SECTION(Amending WSR 97-02-090, filed 12/31/96, effective 1/31/97)

WAC 296-30-010
Definitions.

((Whenever used in these rules, the following words mean:

(1) "Victim" means any person whose injury was not the direct, proximate result of his or her consenting to, provoking, or inciting the criminal act that resulted in the injury.

(2) ")) The following definitions are used to administer the crime victims compensation program:

Acceptance, accepted condition: A determination by the department that the diagnosis of the claimant's medical or mental health condition is the result of the criminal act. The condition being accepted must be specified by one or more diagnostic codes from the current edition of the International Classification of Diseases, Clinically Modified (ICD-CM), or the Diagnostic and Statistical Manual of Mental Disorders (DSM).

Authorization: Notification by a qualified representative of the department that specific treatment, services or equipment provided for the accepted condition is allowable under the claim. Providers must insure they maintain records indicating the name of the qualified representative who authorizes treatment, services or equipment.

Bodily injury((" means)): Any harmful or offensive touching, ((and includes)) including severe emotional distress where no touching takes place when:

(((a) Claimant)) (1) The victim is not the object of the criminal act and:

(((i))) (a) The distress is intentionally or recklessly inflicted((; and

(ii) The distress is inflicted)) by extreme or outrageous conduct; ((and

(iii) The claimant has)) (b) Caused the victim to have a reasonable apprehension of imminent bodily harm; and

(((iv))) (c) The ((claimant)) victim is in the immediate vicinity ((of the criminal act)) at the time of the criminal act ((takes place)).

(((b) Claimant)) (2) The victim is the ((victim)) object of the criminal act and:

(((i))) (a) The distress is intentionally or recklessly inflicted((; and

(ii) The distress is inflicted)) by extreme or outrageous ((or extreme)) conduct; and

(((iii) The claimant had)) (b) Caused the victim to have a reasonable apprehension of imminent bodily harm.

(((3) "Private insurance" means sources of recompense available by contract, such as life or disability insurance.

(4) "Public insurance" means any state or federal statutory welfare and insurance plan that compensates victims or their beneficiaries as a result of the claimed injury or death. This does not include state, federal, or private deferred income retirement plans.

(5) The test used to define "the result of" as used in RCW 7.68.070 (3)(a) is two pronged. First, it must be determined that cause in fact exists, and second, it must then be determined that proximate cause exists.

(a) Cause in fact exists if "but for" the acts of the victim the crime that produced the injury would not have occurred.

(b) Proximate cause exists if, once cause in fact is found, it is determined that the acts of the victim:

(i) Resulted in a foreseeable injury to the victim;

(ii) Played a substantial role in the injury; and

(iii) Were the direct cause of the injury.

(6) "Institutions maintained and operated by department of social and health services or the department of corrections" means those institutions in which the department of social and health services or the department of corrections assumes responsibility for medical coverage of the institution's residents.

(7) "Reasonable cooperation" generally exists when the claimant is:

(a) Willing to talk to police and give information to aid in the investigation; and

(b) Willing to assist in the prosecution of the alleged criminal.

(8) A person is "unjustly enriched" within the meaning of RCW 7.68.070(15) when it would be deficient in justice and fairness, or inequitable, to allow that person to obtain, or have control of or access to, benefits or compensation paid as a result of an injury to a victim of crime.

(9) "Department" means the department of labor and industries.

(10) "Services provided" means services covered under chapter 74.09 RCW or Title XIX of the Federal Social Security Act that are:

(a) Provided by health services providers with credentials recognized by the department for purposes of payment under chapter 51.36 or 7.68 RCW; and

(b) Available and equivalent to those services covered by the department under Title 51 or chapter 7.68 RCW.

(11) ")) Claimant: A victim who submits an application for benefits, or on whose behalf an application is submitted.

Consultation: The services rendered by a mental health provider whose opinion or advice is requested by the attending (treating) mental health provider, or agency, or by the department in the evaluation and/or treatment of a claimant. Case management or case staffing does not constitute a consultation.

Criminal act((" means)): An act defined in RCW 7.68.020, the occurrence of which can be verified by the department or which is reasonably credible. Physically impossible acts, highly improbable acts for which verification is not available, or unverified memories of acts occurring prior to the age of two will not be accepted as reasonably credible. In evaluating evidence to determine verification of claimed criminal acts, the department will give greater weight to the quality, than to the quantity, of evidence. Evidence that can be considered for verification of claimed criminal acts includes, but is not limited to, one or more of the following:

(((a))) (1) Police or other investigation reports.

(((b))) (2) Child protective services or other government agency reports.

(((c))) (3) Diaries or journals kept by victims and others.

(((d))) (4) Third party reports from school counselors, therapists and others.

(((e))) (5) Current medical examinations.

(((f))) (6) Medical or psychological forensic evaluations. In the absence of other adequate forensic evaluation reports, independent assessments per WAC 296-31-069 (((2) and (3))) may be conducted when indicated.

(((g))) (7) Legal and historical reports.

(((h))) (8) Current and past medical and mental health records.

(((i))) (9) Reports of interviews with the victim's family members, friends, acquaintances and others who may have knowledge of pertinent facts. When such interviews are necessary to determine eligibility, the victim will be given the choice of whether to allow the interviews to be conducted. The victim will also be given the understanding that eligibility may be denied if the interviews are not conducted. The department will act according to the victim's choice.

Crisis intervention: Therapy to alleviate the claimant's most pressing problems. The vital mental and safety functions of the claimant are stabilized by providing support, structure and, if necessary, restraint.

Disability awards for mental health conditions: Direct monetary compensation that may be provided to an eligible claimant who is either temporarily totally disabled, permanently totally disabled, or permanently partially disabled resulting from an accepted condition.

Family therapy: Therapy involving one or more members of the claimant's family, excluding the perpetrator, which centers on issues resulting from the claimant's sexual assault pursuant to WAC 296-30-080.

Group therapy: Therapy involving the claimant, and one or more clients who are not related to the claimant, which includes issues related to the claimant's condition and pertinent to other group members.

Immediate family members: Any claimant's parents, spouse, child(ren), siblings, grandparents, and those members of the same household who have assumed the rights and duties commonly associated with a family unit.

Individual therapy: Therapy provided on a one-to-one basis between a therapist and client.

Mental health provider: Any person, firm, corporation, partnership, association, agency, institution, or other entity providing any kind of mental health services related to the treatment of a claimant. This includes, but is not limited to, hospitals, psychiatrists, psychologists, advanced registered nurse practitioners with a specialty in psychiatric and mental health nursing, registered and/or certified master level counselors, and other qualified service providers licensed, registered and/or certified with the department of health and registered with the crime victims compensation program. (Refer to WAC 296-31-030 for specific details.)

Permanent partial disability: Any anatomic or functional loss after maximum recovery has been achieved. When the attending provider has reason to believe a permanent functional loss exists, the department should be notified. Specified disabilities (amputation or loss of function of extremities, loss of hearing or vision) are to be rated utilizing a nationally recognized impairment rating guide. Unspecified disabilities (internal injuries, spinal injuries, mental health, etc.) are to be rated utilizing the category system detailed under WAC 296-20-200, et al. Under Washington law disability awards are based solely on physical or mental impairment due to the accepted injury or conditions without consideration of economic factors. Maximum benefit levels are established by statute.

Permanent total disability (pension): A condition permanently incapacitating a claimant from performing work at any gainful employment. Maximum benefit levels are established by statute.

Proper and necessary: (1) Proper and necessary services for the diagnosis or rehabilitative treatment of an accepted condition;

(2) Reflective of accepted standards of good practice within the scope of the provider's license, certification, or registration;

(3) Not delivered primarily for the convenience of the claimant, the claimant's attending provider, or another provider;

(4) Curative or rehabilitative care that produces long lasting changes which reduces the effects of the accepted condition;

(5) Provided at the least cost and in the least intensive setting of care consistent with the other provisions of this definition; and

(6) Concluded once a claimant has reached a state of maximum improvement. Maximum improvement occurs when no fundamental or marked change in an accepted condition can be expected with or without treatment. A claimant's condition may have reached maximum improvement though it might be expected to improve or deteriorate with the passage of time. Once a claimant's condition has reached maximum improvement, treatment that results only in temporary changes is not proper and necessary. Maximum improvement is equivalent to fixed and stable.

Reasonable cooperation: The victim is able to talk to the police and give information to help in the investigation and prosecution of the alleged offender. There may be circumstances in which the victim is not able to fully cooperate. In these instances, consideration is given to the needs of the victim. The department may consider the following issues. The list is not inclusive:

(1) There is fear of retribution from the offender;

(2) There is a mental or physical condition which inhibits cooperation;

(3) The victim is dependent upon the offender for support;

(4) The victim is a minor.

Temporary partial disability (loss of earning power): Partial time loss compensation may be paid when the claimant can return to work on a limited basis, or return to a lesser paying job is necessitated by the accepted condition. The claimant must have a reduction in wages of at least five percent before consideration of partial time loss can be made. No partial time loss compensation can be paid after the claimant's condition is stationary. All time loss compensation must be certified by the attending provider based on objective findings.

Temporary total disability (time loss compensation): Time loss compensation may be paid when the claimant is temporarily unable to return to reasonable continuous gainful employment as a direct result of an accepted condition. Maximum benefit levels are established by statute.

Termination of treatment: When treatment is no longer required because the accepted condition for which the claim was allowed has become stable. The provider should submit a report indicating the date the condition became stable to the department. The claimant may require continued treatment for conditions not related to the crime injury condition; however, financial responsibility for such care must be the claimants.

The result of: The test used to define "the result of" used in RCW 7.68.070 (3)(a) is two-pronged. First, it must be determined that cause in fact exists, and second, it must then be determined that proximate cause exists.

(1) Cause in fact exists if "but for" the acts of the victim the crime that produced the injury would not have occurred.

(2) Proximate cause exists if, once cause in fact is found, it is determined that the acts of the victim:

(a) Resulted in a foreseeable injury to the victim;

(b) Played a substantial role in the injury; and

(c) Were the direct cause of the injury.

Time loss certification: Documentation from a physician, or mental health professional qualified to treat under the Crime Victims Act, based upon objective findings which are specific symptoms that an accepted condition of a claimant either partially or totally incapacitates the claimant from returning to work.

Unjustly enriched: It would not be fair or equitable justice to allow a person to obtain, or have control of, or access to benefits or compensation paid to a victim of crime.

[Statutory Authority: RCW 51.36.010, 7.68.030, 51.04.020 (1) and (4), 51.04.030, 7.68.080 and 7.68.120. 97-02-090, 296-30-010, filed 12/31/96, effective 1/31/97. Statutory Authority: Chapter 7.68 RCW. 94-02-015, 296-30-010, filed 12/23/93, effective 1/24/94. Statutory Authority: RCW 7.68.030, 7.68.070 (12) and (16) and 51.04.030. 89-23-004, 296-30-010, filed 11/3/89, effective 11/10/89. Statutory Authority: Chapter 7.68 RCW. 86-01-028 (Order 85-37), 296-30-010, filed 12/11/85; 85-03-060 (Order 85-3), 296-30-010, filed 1/15/85.]


AMENDATORY SECTION(Amending WSR 94-02-015, filed 12/23/93, effective 1/24/94)

WAC 296-30-130
((Lump sum)) How are death benefits paid to a survivor(s) receiving public or private death benefits((.))?

(1) ((Lump sum)) Maximum benefits ((paid to the survivor(s) of)) established in RCW 7.68.070(4) for an unemployed victim ((shall)) will be paid on a monthly basis if the survivor(s) is entitled to public or private ((or public)) death benefits. ((The death benefit payments shall be deducted each month from the crime victim's death benefits. Crime victim's benefit payments shall continue until the combined public or private death benefits and the crime victim's death benefits equal the total amount that the survivor(s) is eligible for under chapter 7.68 RCW.

(2) The amount of the monthly payments is based on the state's average monthly wage and are determined by the percentages established in RCW 51.32.050.

(3) This lump sum payment shall be adjusted upward by a factor of 8% to reflect the present and future value of the money.

(4) The survivor(s) of an employed victim are entitled to the maximum in death benefits prescribed by RCW 7.68.070(13). These benefits shall be paid in the same manner as the benefits paid to the survivor(s) of an unemployed victim except that the monthly rate shall be determined by the deceased's regular rate of pay.)) (a) The lump sum payment will be increased by eight percent to reflect the present and future value of the money.

(b) The amount of the monthly payment will be calculated based on the state's average monthly wage, at the time of the criminal act, and is determined by the percentages established in RCW 51.32.050.

(2) The survivor(s) of an employed victim is entitled to the maximum death benefits established in RCW 7.68.070(13). Benefits will be paid in the same manner as benefits paid to the survivor(s) of an unemployed victim, except the monthly rate will be determined by the deceased's regular rate of pay.

(3) Public or private death benefits will be deducted each month from the crime victims compensation program (CVCP) benefits.

(4) CVCP payments shall continue until the combined public or private death benefits and the CVCP death benefits equal the total amount the survivor(s) is eligible to under chapter 7.68 RCW.

(5) This ((procedure)) rule was adopted to ensure equal treatment of survivor(s) in like circumstances.

[Statutory Authority: Chapter 7.68 RCW. 94-02-015, 296-30-130, filed 12/23/93, effective 1/24/94; 86-01-028 (Order 85-37), 296-30-130, filed 12/11/85; 85-03-060 (Order 85-3), 296-30-130, filed 1/15/85.]

OTS-3616.1


AMENDATORY SECTION(Amending WSR 99-20-031, filed 9/29/99, effective 11/1/99)

WAC 296-31-012
What mental health treatment and services are not authorized?

(1) The crime victims compensation program will not authorize services and treatment:

(a) Beyond the point that the accepted condition becomes fixed and stable (i.e., maintenance care);

(b) After the date a permanent partial disability award is made;

(c) After a client is placed on a permanent pension roll, except as allowed in RCW 51.36.010;

(d) ((After consultation and advice to the department, any treatment deemed to be dangerous or inappropriate; or

(e) When treatment is defined as unnecessary or prohibited in WAC 296-31-020)) When services are not considered proper and necessary. Services that are inappropriate to the accepted condition, which present hazards in excess of the expected benefit, are controversial, obsolete, or experimental are presumed not to be proper and necessary, and shall only be authorized on an individual case basis with written authorization for the service from the department; or

(e) For any therapies which focus on the recovery of repressed memory or recovery of memory which focuses on memories of physically impossible acts, highly improbable acts for which verification should be available, but is not, or unverified memories of acts occurring prior to the age of two.

(2) We will not pay for services or treatment, including medications:

(a) On rejected claims;


EXCEPTION: We will pay for assessments or diagnostic services used as a basis for the department's decision.

(b) After the date a claim is closed.


EXCEPTION: Therapy for eligible survivors of victims of homicide can be provided on closed claims.

[Statutory Authority: RCW 7.68.030, 51.04.030 and 51.36.010. 99-20-031, 296-31-012, filed 9/29/99, effective 11/1/99.]


REPEALER

     The following section of the Washington Administrative Code is repealed:
WAC 296-31-020 Definitions.

Washington State Code Reviser's Office