BILL REQ. #:  Z-0436.3 

Read first time 02/07/2007.   Referred to Committee on Commerce & Labor.

     AN ACT Relating to a pilot program for vocational rehabilitation services; amending RCW 51.32.095; adding a new section to chapter 51.32 RCW; creating a new section; providing an effective date; and providing an expiration 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)) section 2 of this act.
     (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;
     (c) A new job with the same employer in keeping with any limitations or restrictions;
     (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) When the department has approved a vocational plan for a worker prior to January 1, 2008, regardless of whether the worker has begun participating in the approved plan, vocational rehabilitation services shall be provided under this section.
     When the department has approved a vocational plan for a worker between January 1, 2008, through June 30, 2013, vocational rehabilitation services shall be provided under the pilot program established in section 2 of this act.
     (6) 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))) (7) 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 and section 2 of this act.
     (((7))) (8) The benefits in this section and section 2 of this act shall be provided for the injured workers of self-insured employers. Self-insurers shall report both benefits provided and benefits denied under this section and section 2 of this act 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 or section 2 of this act, 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))) (9) Except as otherwise provided in this section or section 2 of this act, the benefits provided for in this section and section 2 of this act 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   A new section is added to chapter 51.32 RCW to read as follows:
     (1)(a) The legislature intends to create improved vocational outcomes for Washington state injured workers and employers through legislative and regulatory change under a pilot program for the period of January 1, 2008, through June 30, 2013. This pilot vocational system is intended to allow opportunities for eligible workers to participate in meaningful retraining in high demand occupations, improve successful return to work and achieve positive outcomes for workers, reduce the incidence of repeat vocational services, increase accountability and responsibility, and improve cost predictability. To facilitate the study and evaluation of the results of the proposed changes, the department shall establish a temporary vocational cost fund to minimize any unintended financial impacts to Washington employers who, in partnership with Washington workers, support the workers' compensation system through premium contributions and other assessments. The department shall initially fund the temporary vocational cost fund through the transfer of twenty million dollars from the medical aid account effective July 1, 2008. Additional funds may be transferred from the medical aid account as deemed necessary by the director. The director may, upon recommendation of the department actuary, abolish this fund five years after the end of the pilot program.
     (b) An independent review and study of the effects of the pilot program shall be conducted to determine whether it has achieved the appropriate outcomes at reasonable cost to the system. The department may adopt rules to further define the scope and elements of the required study.
     (c) In implementing the pilot program, the department shall:
     (i) Establish a vocational initiative project that includes participation by the department as a partner with WorkSource, the established state system that administers the federal workforce investment act of 1998. As a partner, the department shall place vocational professional full-time employees at pilot WorkSource locations; refer some workers for vocational services to these vocational professionals; and work with employers in work source pilot areas to market the benefits of on-the-job training programs and with community colleges to reserve slots in high demand programs. These on-the-job training programs and community college slots may be considered by both department and private sector vocational professionals for vocational plan development.
     (ii) Develop and maintain a register of state fund and self-insured workers who have been retrained or have selected any of the vocational options described in this section for at least the duration of the pilot program.
     (iii) Create a vocational rehabilitation subcommittee made up of members appointed by the director for at least the duration of the pilot program. This subcommittee shall provide the business and labor partnership needed to maintain focus on the intent of the pilot program, as described in this section, and provide consistency and transparency to the development of rules and policies. The subcommittee shall report to the director at least annually and recommend to the director and the legislature any additional statutory changes needed, which may include extension of the pilot period until December 1, 2013.
     (2)(a) For the purposes of this section, the day the worker commences vocational plan development means the date the department refers the worker's case to a vocational professional for plan development services.
     (b) When vocational rehabilitation is both necessary and likely to make the worker employable at gainful employment, he or she shall be provided with services necessary to develop a vocational plan that, if completed, would render the worker employable. The vocational professional assigned to the claim shall, at the initial meeting with the worker, fully inform the worker of the return-to-work priorities set forth in RCW 51.32.095(2) and of his or her rights and responsibilities under the workers' compensation vocational system. The department shall provide tools to the vocational professional for communicating this and other information required by RCW 51.32.095 and this section to the worker.
     (c) On the date the department refers the case to a vocational professional for plan development, the department shall also inform the employer in writing of the employer's right to proffer a valid return to work offer. To be valid, the offer must be for gainful employment in a permanent position with the employer of injury, consistent with the worker's documented physical restrictions as provided by the worker's health care provider. If the employer fails to communicate a valid job offer within fifteen calendar days of the day the worker commences vocational plan development, the worker may decline any subsequent offer and choose to remain in vocational plan development and participate in the identified vocational plan or option.
     (3)(a) All vocational plans must contain an accountability agreement signed by the worker detailing expectations regarding progress, attendance, and other factors influencing successful participation in the plan. Failure to abide by the agreed expectations may result in suspension of vocational benefits pursuant to RCW 51.32.110.
     (b) Any formal education included as part of the vocational plan must be for an accredited or licensed program.
     (c) The vocational plan for an individual worker must be completed and submitted to the department within ninety days of the day the worker commences vocational plan development. The department may by rule adopted pursuant to chapter 34.05 RCW create exceptions and extensions to this requirement.
     (d) Costs for the vocational plan may include books, tuition, fees, supplies, equipment, child or dependent care, training fees for on-the-job training, the cost of furnishing tools and other equipment necessary for self-employment or reemployment, and other necessary expenses in an amount not to exceed twelve thousand dollars. This amount shall be adjusted effective July 1 of each year for vocational plans approved on or after this date but before June 30 of the next year based on the average percentage change in tuition for the next fall quarter for all Washington state community colleges.
     (e) The duration of the vocational plan shall not exceed two years from the date the plan is implemented. The worker shall receive temporary total disability compensation under RCW 51.32.090 and the cost of transportation while he or she is actively and successfully participating in a vocational plan.
     (f) If the worker is required to reside away from his or her customary residence, the reasonable cost of board and lodging shall also be paid.
     (g)(i) 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. For vocational plans implemented on or after January 1, 2008, the costs may be paid from the temporary fund established in subsection (1) of this section at the sole discretion of the director under the following circumstances:
     (A) The worker previously participated in a vocational plan or selected a worker option as described in subsection (4) of this section;
     (B) The worker's prior vocational plan or selected option was based on an approved plan or option on or after January 1, 2008; and
     (C) The date of injury or disease manifestation is within the period of time used to calculate the state fund employer's experience factor.
     (ii) The vocational plan costs charged to this fund shall include the costs of temporary total disability benefits, except those payable from the supplemental pension fund, from the date the vocational plan is implemented to the date the worker completes the plan or ceases participation. The vocational costs paid from this fund shall not be charged to the state fund employer's cost experience. The self-insured employer whose worker participated in a plan as described in (g)(i)(A) and (B) of this subsection may request the director exercise his or her discretion to reimburse the employer from this fund for the vocational plan costs and temporary total disability compensation paid.
     (4) When the worker, with the assistance of a vocational professional, has completed the development of the vocational plan as described in subsection (3) of this section, the vocational plan must be submitted to the department for approval. To obtain approval, the vocational professional must submit the completed plan to the department and the worker. Upon approval of the plan by the department, the worker has fifteen calendar days to elect one of the following two options.
     (a) Option 1: The department implements and the worker participates in the vocational plan developed by the vocational professional and approved by the worker and the department.
     (b) Option 2: The worker declines to participate in the vocational plan and instead is entitled to payment of an amount equal to six months of temporary total disability compensation under RCW 51.32.090, paid in biweekly payments in accordance with the worker's schedule of temporary total disability payments. These payments will not include interest on the unpaid balance, and the department may provide the entire amount due in a lump sum payment at its discretion. The amount of tuition benefits or educational costs as described in the vocational plan are available to the worker, upon application to the department or self-insurer, for a period of five years after the date of option election and may be expended at an accredited institution for tuition, books, fees, and tools required for the program without department or employer oversight. The value of the tuition and/or educational costs shall increase based on the changes in tuition as provided in subsection (3)(d) of this section. The department shall close the claim effective the date of option 2 election.
     (c) At the sole discretion of the director, if vocational assistance is both necessary and likely to prevent permanent and total disability under RCW 51.32.060, the department may order the provision of vocational services for a worker, not to exceed the level of benefits as described in subsection (3)(d) and (e) of this section without regard to the worker's prior option selection previously expended in the claim.
     (5)(a) As used in this section, "vocational plan interruption" means an occurrence that disrupts a vocational plan to the extent that the employability goal is no longer attainable within the cost and time limits detailed in the plan. Institutionally scheduled breaks in educational programs or occasional absence due to illness are not vocational plan interruptions.
     (b) When a vocational plan interruption is beyond the control of the worker, the worker may recommence the plan. The department or self-insurer shall credit any time and money expended prior to the interruption necessary to complete the plan. A vocational plan interruption is beyond the control of the worker when it is due to the closure of the accredited institution, the death of the worker's father, mother, spouse, sibling, or child, or documented changes in the workers objective medical condition that prevent further participation in the vocational plan.
     (c) When a vocational plan interruption is the result of the worker's actions, the worker's entitlement to temporary total disability payments shall be suspended. If the plan is recommenced, or a new plan is developed, the department or self-insurer shall not credit any time and money expended prior to the plan interruption. A vocational plan interruption is the result of the worker's actions when the worker fails to meet attendance expectations set by the training or educational institution or fails to achieve passing grades or acceptable performance reviews.
     (d) The department may adopt rules to provide appropriate exceptions and to further define and provide examples of vocational plan interruptions.
     (6) A worker who receives vocational assistance, in the form of either of the options described in subsection (4) of this section, and files an aggravation of the accepted injury or occupational disease or files a new claim, may be entitled to future vocational assistance.
     (a) If the worker selects option 1 under subsection (4) of this section and successfully completes the identified vocational plan, he or she may be eligible for vocational services under a subsequent claim as provided in RCW 51.32.095(2) or following the reopening of the claim for which retraining was provided. If the worker is eligible for vocational services following the reopening of the claim, the total amount available for vocational services are subject to the limitations under subsection (3) of this section.
     (b) If the worker selects option 2 under subsection (4) of this section, and the date of injury or disease manifestation for the subsequent claim or the date of reopening of the existing claim occurs less than five years from the date of the prior closure under subsection (4) of this section, any retraining plan is limited to eighteen months and the value of the total amount of benefits under subsection (3) of this section less any moneys expended by the department or self-insurer for training at an accredited institution as provided in subsection (4)(b) of this section. The option 2 selection under subsection (4)(b) of this section is not available to the worker under the subsequent claim or reopening. Any tuition benefits not yet expended under an option 2 selection are only available for the implementation of a vocational retraining plan.
     (c) Under the subsequent claim, the director may allow additional training time and tuition money, without regard to the worker's prior option 2 selection but not to exceed the limits provided in subsection (3) of this section, when additional time or tuition money would make the worker employable.

NEW SECTION.  Sec. 3   The department of labor and industries shall adopt rules necessary to implement this act.

NEW SECTION.  Sec. 4   This act takes effect January 1, 2008.

NEW SECTION.  Sec. 5   This act expires June 30, 2013.