BP BHEAD INT S [atlas:bill]

AN ACT Relating to vocational rehabilitation; amending RCW 51.32.095; adding new sections to chapter 51.32 RCW; providing an effective date; and providing an expiration date.

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

NEW SECTION. Sec. 1. A new section is added to chapter 51.32 RCW to read as follows:

(1) One of the primary purposes of this title is to enable injured workers to return to gainful employment. To be gainful employment, the employment must, in addition to other relevant factors, pay at least the legal minimum wage. Where, as a proximate result of the industrial injury or occupational disease, a worker is not employable, or the worker's wage earning capacity is less than seventy percent of his or her wages at the time of injury, and the supervisor of industrial insurance or the supervisor's designee determines that vocational rehabilitation services are necessary and likely to enable the injured worker to become employable at gainful employment or increase the worker's wage earning capacity at least twenty percent and not less than two dollars per hour, the supervisor or the supervisor's designee, in his or her sole discretion, whether or not medical treatment has concluded, and prior to final evaluation of the worker's permanent disability, may pay or, if the employer is a self-insurer, direct the self-insurer to pay for any or all of the costs provided in subsections (4) and (5) of this section. In exercising his or her sole discretion, the supervisor of industrial insurance or the supervisor's designee shall consider:

(a) The expected cost, duration, and benefit of the vocational services;

(b) Whether the worker has taken advantage of and utilized vocational services provided in the past; and

(2) The following order of priorities shall guide the provision of all vocational services under this section:

(a) Vocational rehabilitation services that enable the injured worker to return to employment with the date of injury employer. This may include a return to the job at injury, a modified job, or a new job with the date of injury employer. This may also include a transitional return to work;

(b) Vocational rehabilitation services that enable the injured worker to return to employment with a new employer. This may include a modification of the previous job or a new job. This may also include a transitional return to work; and

(3)(a) The supervisor of industrial insurance, or the supervisor's designee, may require the injured worker to participate in a vocational evaluation. The vocational evaluation should include an assessment of the worker's:

(i) Age, education, and interests;

(ii) Applicable transferable skills;

(iii) Preexisting physical and mental conditions;

(iv) Physical and mental conditions proximately caused by the worker's industrial injury or occupational disease;

(v) Current wage earning capacity;

(vi) Expected wage earning capacity after completion of vocational rehabilitation services; and

(vii) Significant barriers to employment.

(b) The vocational evaluation should also include such other pertinent information as the department may prescribe by rule.

(4)(a) The cost of vocational rehabilitation services, excluding the cost of vocational rehabilitation counselors, may not exceed five thousand dollars over eighteen months. Costs for a formal program of vocational rehabilitation allowed by the supervisor or the supervisor's designee under subsection (1) of this section may include, but is not limited to, the following costs:

(i) Tuition, books, fees, and supplies;

(ii) Equipment, including equipment necessary for self-employment or reemployment;

(iii) Child or dependent care;

(iv) Fees for on-the-job training and the cost of furnishing tools; and

(v) A wage subsidy paid to an employer other than the employer at the time of injury in an amount not to exceed fifty percent of the worker's monthly wages over a period not to exceed six months. The wage subsidy must begin prior to claim closure and may not extend beyond six months after claim closure.

(b) The reasonable costs of transportation and, 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. Any costs 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.

(5) In addition to the vocational rehabilitation expenditures provided for under subsection (4) of this section, an additional five thousand dollars may, upon authorization of the supervisor of industrial insurance 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 costs shall be chargeable to the employer's cost experience or shall be paid by the self-insurer as the case may be. The total expenditures authorized in this subsection and the expenditures authorized under RCW 51.32.250 may not exceed five thousand dollars.

(6) Whenever the supervisor of industrial insurance or the supervisor's designee, in his or her sole discretion, determines that reemployment services are likely to enable an injured worker to return to employment, the supervisor or the supervisor's designee may pay or, if the employer is a self-insurer, direct the employer to pay for the following:

(a) Job development, job search, and job placement services, not to exceed ninety days and seven hundred fifty dollars; and

(b) Skill enhancement services, not to exceed five hundred dollars.

(7) While the worker is actively and successfully undergoing a formal program of vocational rehabilitation under this section, the supervisor of industrial insurance or the supervisor's designee shall pay or, if the employer is a self-insurer, direct the self-insurer to pay the worker temporary total disability compensation under RCW 51.32.090. If the worker receives wages as part of the formal vocational plan of rehabilitation, he or she may not be entitled to temporary total disability compensation under this subsection.

(8) 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 or the director's designee 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.

(9) The department may adopt rules, as it deems necessary, to implement this section.

(10) Claims may not be reopened solely for vocational rehabilitation purposes.

(11) The benefits set forth in this section shall be provided to any otherwise eligible worker that files an application for benefits after June 30, 2001. A worker who files an application for benefits after June 30, 2001, may not be considered for, or receive any benefits under, RCW 51.32.095.

(12) This section expires June 30, 2005.

Sec. 2. 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.

(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)~~)) (6) Except as ((~~otherwise provided in this section~~)) provided in section 1 of this act, 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. 3. A new section is added to chapter 51.32 RCW to read as follows:

(1) The department shall establish, adopt, and supervise the administration of printed forms, rules, regulations, and practices for the furnishing of vocational services under this act. Only those persons, firms, partnerships, corporations, or other entities, whether public or private, that are registered with the department may provide vocational services to injured workers under this act. Registration under this subsection may not guarantee or entitle the vocational provider to any referrals under this act. The department shall adopt rules that establish the qualifications necessary to become registered with the department.

(2) The director shall, in consultation with interested persons, establish and, in his or her discretion, periodically change as may be necessary, and make available a fee schedule of the maximum charges to be made by a registered vocational provider. No services covered under this section shall be charged or paid at a rate or rates exceeding those specified in the fee schedule, and no contract providing for greater fees shall be valid as to the excess. The establishment of such a schedule does not constitute agency action as defined in RCW 34.05.010, nor does such a fee schedule constitute a rule as defined in RCW 34.05.010.

(3) The vocational services purchased under this act shall be prudent, cost-effective, and conform with accepted standards of good practice. The state fund shall make referrals for vocational services based on the vocational provider's performance. In selecting a vocational provider, the department may consider:

(a) The complexity of cases handled by the vocational provider;

(b) The cost of the services rendered by the vocational provider;

(d) The outcome of services;

(e) The worker's wage earning capacity after the conclusion of vocational services;

(f) Whether the worker was employed ninety days after vocational services were concluded; and

(g) Such other pertinent information as the department may prescribe by rule.

(4) 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.

NEW SECTION. Sec. 4. A new section is added to chapter 51.32 RCW to read as follows:

The department shall make annual reports to the house of representatives commerce and labor committee, and the senate labor and workforce development committee, or the successor committees, beginning December 1, 2001, and ending December 1, 2004.

NEW SECTION. Sec. 5. Section 1 of this act takes effect July 1, 2001.