S-4503

AN ACT Relating to vocational rehabilitation services; amending RCW 51.32.095; and providing an effective date.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

Sec. 1. RCW 51.32.095 and 1999 c 110 s 1 are each amended to read as follows:

(1) One of the primary purposes of this title is to enable the injured worker to become employable at gainful employment. To this end, the department or self-insurers shall utilize the services of individuals and organizations, public or private, whose experience, training, and interests in vocational rehabilitation and retraining qualify them to lend expert assistance to the supervisor of industrial insurance in such programs of vocational rehabilitation as may be reasonable to make the worker employable consistent with his or her physical and mental status. Where, after evaluation and recommendation by such individuals or organizations and prior to final evaluation of the worker's permanent disability and in the sole opinion of the supervisor or supervisor's designee, whether or not medical treatment has been concluded, vocational rehabilitation is both necessary and likely to enable the injured worker to become employable at gainful employment, the supervisor or supervisor's designee may, in his or her sole discretion, pay or, if the employer is a self-insurer, direct the self-insurer to pay the cost as provided in subsection (3) of this section.

(2) When in the sole discretion of the supervisor or the supervisor's designee vocational rehabilitation is both necessary and likely to make the worker employable at gainful employment, then the following order of priorities shall be used:

(a) Return to the previous job with the same employer;

(b) Modification of the previous job with the same employer including transitional return to work;

(d) Modification of a new job with the same employer including transitional return to work;

(e) Modification of the previous job with a new employer;

(f) A new job with a new employer or self-employment based upon transferable skills;

(g) Modification of a new job with a new employer;

(h) A new job with a new employer or self-employment involving on-the-job training;

(i) Short-term retraining and job placement.

(3)(a) Except as provided in (b) of this subsection, costs for vocational rehabilitation benefits allowed by the supervisor or supervisor's designee under subsection (1) of this section may include the cost of books, tuition, fees, supplies, equipment, transportation, child or dependent care, and other necessary expenses for any such worker in an amount not to exceed three thousand dollars in any fifty-two week period ((~~except as authorized by RCW 51.60.060~~)), and the cost of continuing the temporary total disability compensation under RCW 51.32.090 while the worker is actively and successfully undergoing a formal program of vocational rehabilitation.

(b) Beginning with vocational rehabilitation plans approved on or after July 1, 1999, costs for vocational rehabilitation benefits allowed by the supervisor or supervisor's designee under subsection (1) of this section may include the cost of books, tuition, fees, supplies, equipment, child or dependent care, and other necessary expenses for any such worker in an amount not to exceed four thousand dollars in any fifty-two week period ((~~except as authorized by RCW 51.60.060~~)), and the cost of transportation and continuing the temporary total disability compensation under RCW 51.32.090 while the worker is actively and successfully undergoing a formal program of vocational rehabilitation.

(c) The expenses allowed under (a) or (b) of this subsection may include training fees for on-the-job training and the cost of furnishing tools and other equipment necessary for self-employment or reemployment. However, compensation or payment of retraining with job placement expenses under (a) or (b) of this subsection may not be authorized for a period of more than fifty-two weeks, except that such period may, in the sole discretion of the supervisor after his or her review, be extended for an additional fifty-two weeks or portion thereof by written order of the supervisor.

(d) In cases where the worker is required to reside away from his or her customary residence, the reasonable cost of board and lodging shall also be paid.

(e) Costs paid under this subsection shall be chargeable to the employer's cost experience or shall be paid by the self-insurer as the case may be.

(4) ((In addition to the vocational rehabilitation expenditures provided for under subsection (3) of this section, an additional five thousand dollars may, upon authorization of the supervisor or the supervisor's designee, be expended for: (a) Accommodations for an injured worker that are medically necessary for the worker to participate in an approved retraining plan; and (b) accommodations necessary to perform the essential functions of an occupation in which an injured worker is seeking employment, consistent with the retraining plan or the recommendations of a vocational evaluation. The injured worker's attending physician must verify the necessity of the modifications or accommodations. The total expenditures authorized in this subsection and the expenditures authorized under RCW 51.32.250 shall not exceed five thousand dollars)) The following early intervention services are authorized as provided in this subsection.

(a) To provide employers and injured workers greater flexibility in returning injured workers to work at the same job or a new job with the employer of injury or a new employer, a self-insurer or the supervisor of industrial insurance, or supervisor's designee, in his or her sole discretion, at an employer's request and with the employer's approval, may pay the costs of early intervention services as provided in (b) of this subsection, if:

(i) The attending doctor has certified that it is more probable than not that the injured worker's accepted condition will last more than twelve months from the date of injury, and that the injured worker's accepted condition constitutes a substantial impairment that prevents the injured worker from performing an essential function of the job at injury; and

(ii) The employer has obtained a job analysis of the proposed job completed by a qualified vocational rehabilitation professional and approved by the attending doctor. The job analysis must meet standards determined by department rule, not to exceed the job analysis requirements of the federal Americans with disabilities act, P.L. 101-336.

(b) Early intervention services may include:

(i) The costs of job modification, including workstation improvements and personal accommodation devices. If expenditures are for a new job with the employer of injury or a new employer, modification of the worker's job at injury must not be an option or constitute an undue hardship to the employer, and the worker's wages must be at least ninety-five percent of the worker's wages at injury;

(ii) Skill enhancement costs, limited to tuition, books, and fees, to provide the injured worker with skills to meet the requirements of the new job;

(iii) Professional services, such as job modification consultation to assist with job modification and skill enhancement; and

(iv) A wage subsidy of up to thirty percent of the injured worker's wages for a modified job at injury or a new job. If the payment of a wage subsidy pursuant to a schedule authorized under this subsection is not completed before claim closure, the subsidy may continue to be paid after the claim is closed, consistent with the authorized schedule. An injured worker is not eligible for a wage subsidy and benefits under RCW 51.32.090(3) for the same period.

(c) Early intervention services, except for services under (b)(i) of this subsection, must terminate if the injured worker has refused a bona fide offer of employment or if the injured worker is referred for vocational assessment.

(d) Total costs for early intervention services may not exceed five thousand dollars, and expenditures for services under (b)(ii) through (iv) of this subsection may not exceed two thousand five hundred dollars of the five thousand dollar total.

(e) For state fund employers, the costs under (b)(i) of this subsection shall be charged to the employer's medical aid fund cost experience, and the costs under (b)(ii) through (iv) of this subsection shall be charged to the state fund employer's accident fund cost experience. Self-insured employers shall pay all costs of early intervention services directly, except for costs under (b)(i) of this subsection, which shall be charged to the second injury fund.

(f)(i) If an employer fails to retain an injured worker who received early intervention services under this section in the new or modified job for at least fifty-two weeks, the employer must repay the benefits paid under this section, unless the failure to retain the worker was for reasons not attributable to the employer. The employer may contest a department order assessing the repayment in the same manner and to the same extent as provided in RCW 51.52.050 and 51.52.060.

(ii)(A) If a department's order of repayment under this subsection becomes final under chapter 51.52 RCW, the director or director's designee may file with the clerk in any county within the state a warrant in the amount representing the sum to be repaid plus interest accruing from the date the order became final. The clerk of the court shall be entitled to a filing fee of five dollars, which shall be added to the amount of the warrant. A copy of the warrant shall be mailed to the employer within three days of filing with the clerk.

(B) The clerk of the county in which the warrant is filed shall immediately designate a superior court cause number for the warrant and the clerk shall cause to be entered in the judgment docket under the superior court cause number assigned to the warrant the name of the employer named in the warrant, the amount of the repayment plus interest accrued, and the date the warrant was filed. The amount of the warrant as docketed shall become a lien upon the title to and interest in all real and personal property of the employer against whom the warrant is issued, the same as a judgment in a civil case docketed in the office of such clerk. The sheriff shall then proceed in the same manner and with like effect as prescribed by law with respect to execution or other process issued against rights or property upon judgment in the superior court.

(I) The issuance of writs of garnishment in favor of the department in the manner provided by law in the case of judgment, wholly or partially unsatisfied; and

(II) Any action by the department authorized under this title for the collection of payments due to the state fund.

(5) The department shall establish criteria to monitor the quality and effectiveness of rehabilitation services provided by the individuals and organizations used under subsection (1) of this section. The state fund shall make referrals for vocational rehabilitation services based on these performance criteria.

(6) The department shall engage in, where feasible and cost-effective, a cooperative program with the state employment security department to provide job placement services under this section.

(7) The benefits in this section shall be provided for the injured workers of self-insured employers. Self-insurers shall report both benefits provided and benefits denied under this section in the manner prescribed by the department by rule adopted under chapter 34.05 RCW. The director may, in his or her sole discretion and upon his or her own initiative or at any time that a dispute arises under this section, promptly make such inquiries as circumstances require and take such other action as he or she considers will properly determine the matter and protect the rights of the parties.

(8) Except as otherwise provided in this section, the benefits provided for in this section are available to any otherwise eligible worker regardless of the date of industrial injury. However, claims shall not be reopened solely for vocational rehabilitation purposes.

NEW SECTION. Sec. 2. Section 1 of this act takes effect July 1, 2000.