WSR 00-11-129

PROPOSED RULES

DEPARTMENT OF

SOCIAL AND HEALTH SERVICES
(Economic Services Administration)

[ Filed May 22, 2000, 3:21 p.m. ]

Original Notice.

Preproposal statement of inquiry was filed as WSR 00-08-051.

Title of Rule: Chapter 388-235 WAC, General assistance unemployable, and related rules.

Purpose: This revision is being done to meet the requirements of Title 388 WAC, chapter 388-235 WAC will be repealed and will be rewritten to meet the standards of Executive Order No. 97-02. It will then be incorporated into chapter 388-448 WAC.

Statutory Authority for Adoption: RCW 74.04.050, 74.04.055, 74.04.057, 74.08.090.

Statute Being Implemented: Chapter 74.04 RCW.

Summary: Chapter 388-235 WAC is migrating to chapter 388-448 WAC and is written in clear language.

Name of Agency Personnel Responsible for Drafting, Implementation and Enforcement: Carla Gira, Program Manager, Lacey Government Center, 1009 College Street S.E., Lacey, WA 98503, (360) 413-3264.

Name of Proponent: Department of Social and Heath Services, governmental.

Rule is not necessitated by federal law, federal or state court decision.

Explanation of Rule, its Purpose, and Anticipated Effects: These rules clearly explain the general assistance unemployable program eligibility and requirements.

Proposal does not change existing rules.

No small business economic impact statement has been prepared under chapter 19.85 RCW. This rule does not impact small business.

RCW 34.05.328 applies to this rule adoption. The rule meets the definition of a "significant legislative rule" but DSHS is exempt from preparing a cost benefit analysis under RCW 34.05.328 (5)(b)(vii).

Hearing Location: Lacey Government Center (behind Tokyo O'Bento Restaurant), 1009 College Street S.E., Room 104-B, Lacey, WA 98503, on July 11, 2000, at 10:00 a.m.

Assistance for Persons with Disabilities: Contact Fred Swenson by June 30, 2000, phone (360) 664-6097, TTY (360) 664-6178, e-mail swensfh@dshs.wa.gov.

Submit Written Comments to: Identify WAC Numbers, DSHS Rules Coordinator, Rules and Policies Assistance Unit, P.O. Box 45850, Olympia, WA 98504-5850, fax (360) 664-6185, by July 11, 2000.

Date of Intended Adoption: No sooner than July 12, 2000.

May 17, 2000

Marie Myerchin-Redifer, Manager

Rules and Policies Assistance Unit

2736.3
NEW SECTION
WAC 388-448-0010
How we decide if you are incapacitated.

When you apply for general assistance unemployable (GAU) program benefits, you must provide medical evidence to us to show that you are unable to work. If we say that you are "incapacitated," it means that you are incapable of gainful employment as a result of a physical or mental impairment that is expected to continue for ninety days or more from the date of application.

(1) If you are gainfully employed at the time of your application for GAU, we deny incapacity. "Perform gainful employment" means you can perform, in a regular and predictable manner, an activity usually done for pay or profit. We do not consider work to be gainful employment when you are:

(a) Working under special conditions, like a sheltered workshop we have approved; or

(b) Working occasionally or part-time if your medical condition limits the hours you can work compared to unimpaired workers in the same job.

(2) We decide if you are able to perform gainful employment when:

(a) We receive an application for benefits. We may waive this decision if medical documentation requirements are waived under WAC 388-448-0001;

(b) You become employed; or

(c) We get new information that indicates you may be employable.

(3) Unless medical documentation requirements are waived under WAC 388-448-0001, we determine if incapacity exists using the progressive evaluation process (PEP). When we receive your medical evidence, we use the PEP to decide if there is a medical impairment that prevents you from being gainfully employed. The PEP is a seven-step process which we follow in order until a decision about incapacity is made.

(4) You are not eligible for GAU benefits if you are incapacitated only because of alcoholism or drug addiction. If you have a physical or mental impairment and you are impaired by alcohol or drug addiction, we decide if you are eligible for general assistance. If you qualify for both GAU and ADATSA shelter, you may choose either program.

(5) In determining incapacity, we consider only your ability to perform basic work-related activities. "Basic work-related activities" are activities that anyone would be required to perform in a work setting. They consist of: sitting, standing, walking, lifting, carrying, handling, seeing, hearing, communicating, and understanding and following instructions.

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NEW SECTION
WAC 388-448-0020
How and from whom you can get medical evidence for incapacity determination.

Before we can find out if you are eligible, you must give us medical evidence that meets the requirements in WAC 388-448-0030. Medical evidence provides us with the details of your impairment and how it affects your ability to be gainfully employed. If you cannot get medical evidence without cost to you, we will pay the fees or other expenses based on our published policies and payment limits.

We accept medical evidence from the sources listed below:

(1) For a physical impairment, we only accept reports from the following licensed medical professionals as primary evidence:

(a) A physician;

(b) An advanced registered nurse practitioner (ARNP) in the ARNP's area of certification;

(c) The chief of medical administration of the Veterans' Administration, or their designee, as authorized in federal law; or

(d) A physician assistant when the report is co-signed by the supervising physician.

(2) For a mental impairment, we only accept reports from one of the following licensed professionals as primary evidence:

(a) A psychiatrist;

(b) A psychologist;

(c) An advanced registered nurse practitioner when certified in psychiatric nursing;

(d) A person who provides mental health services in a community mental health services setting and meets the mental health practitioner qualifications set by the local community mental health agency, which consist of having a Master of Arts (MA) degree and two years experience; or

(e) The physician who is currently treating you for a mental disorder.

(3) "Supplemental medical evidence" means a report from a practitioner that can be used to support medical evidence given by any of the practitioners listed in subsections (1) and (2) of this section. We accept as supplemental medical evidence reports from:

(a) A practitioner who is providing on-going treatment to you, such as a chiropractor, nurse, physician assistant; or

(b) DSHS institutions and agencies that are providing or have provided services to you.

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NEW SECTION
WAC 388-448-0030
The kind of medical evidence you need to provide for determination of incapacity.

You must provide medical evidence that clearly explains what physical or mental health problem you have that incapacitates you. "Impairment" means any diagnosable physical or mental condition except alcoholism or drug addiction. The following describes how we decide if the medical evidence that you provide regarding your impairment meets the requirements:

(1) We only accept written medical evidence. It must contain clear, objective medical documentation that includes:

(a) A diagnosis for the incapacitating condition;

(b) The effect of the condition on your ability to perform work-related activities; and

(c) Relevant medical history and sufficient medical documentation to support conclusions of incapacity.

(2) The medical evidence must be based on an exam within the last ninety days.

(3) When making an incapacity decision, we do not use your report of symptoms as evidence unless medical findings show there is a medical condition that could reasonably be expected to produce the symptoms reported. In those cases, you must provide us with clear and objective medical information, including observation by the medical practitioner and relevant medical history that supports conclusions about:

(a) The existence and persistence of the symptom(s); and

(b) Its effect on your ability to perform basic work activities.

(4) We decide incapacity based solely on the objective information we receive. We are not obligated to accept a decision that you are incapacitated or unemployable made by another agency or person.

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NEW SECTION
WAC 388-448-0035
How we assign severity ratings to your impairment.

(1) "Severity rating" means a rating of the extent of your incapacity, and how severely it impacts your ability to perform the basic work activities. Severity ratings are assigned in Steps II through IV of the PEP. The following chart provides a description of levels of limitations on work activities and the severity ratings that would be assigned to each.


Effect on work activities Severity rating
(a) There is no affect on your performance of basic work-related activities. 1
(b) There is no significant effect on your performance of basic work-related activities. 2
(c) There are significant limits on your performance of at least one basic work-related activity. 3
(d) There are very significant limits on your performance of at least one basic work-related activity. 4
(e) You are unable to perform at least one basic work-related activity. 5

(2) We use the severity rating given by the medical evidence provider:

(a) If the rating is supported by and consistent with the medical evidence;

(b) If the provider's assessment of your limitations is consistent with our definition of the rating; and

(c) If the rating is consistent with other medical evidence provided to us.

(3) If the medical evidence provider assigns a severity rating that is not consistent with the objective evidence and your symptoms from your impairment as described in the medical evidence, we take the following action:

(a) If your limitations are more severe than the rating given, we raise your severity rating; or

(b) If your limitations are less severe than the rating given, we lower your severity rating; and

(c) We give clear and convincing reasons for adjusting the rating.

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NEW SECTION
WAC 388-448-0040
PEP step I -- Review of medical evidence required for eligibility determination.

When we receive your medical evidence, we review it to see if it is complete and to decide whether your circumstances match GAU program requirements.

(1) The following evidence is needed to determine incapacity:

(a) The medical report must contain sufficient information as described under WAC 388-448-0030;

(b) An authorized medical professional wrote the medical report;

(c) The report documents the existence of a potentially incapacitating condition; and

(d) The medical report indicates an impairment is expected to last ninety days or more from the application date.

(2) If the information received does not provide information that is clear enough for us to make a decision about your ability to be gainfully employed, we may require you to get additional information including additional medical testing or an exam by a medical specialist.

(3) We deny incapacity when:

(a) There is only one impairment with a severity rating less than three;

(b) A reported impairment is not expected to last ninety days (twelve weeks) or more from the date of application;

(c) The practitioner is not able to determine that the physical or mental impairment would remain incapacitating after at least sixty days of abstinence from alcohol and drugs; or

(d) We do not have clear and objective medical evidence to approve incapacity.

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NEW SECTION
WAC 388-448-0050
PEP step II -- How we determine the severity of mental impairments.

If you are diagnosed with a mental impairment, we use information from the provider to determine if your impairment prevents you from being gainfully employed. We review the psychological evidence to determine the severity of your mental impairment.

(1) The severity of your mental impairment is based on:

(a) Psychosocial and treatment history;

(b) Clinical findings;

(c) Results of psychological tests; and

(d) Symptoms observed by the examining practitioner that show impairment of your ability to perform basic work-related activities.

(2) If you are diagnosed with mental retardation, the diagnosis must be based on the Wechsler Adult Intelligence Scale (WAIS). The following test results determine the severity rating:


Intelligence Quotient (IQ) Score Severity Rating
85 or above 1
71 to 84 3
70 or lower 5

(3) If you are diagnosed with a mental impairment with physical causes, we assign a severity rating based on the most severe of the following three areas of impairment:

(a) Memory defect for recent events;

(b) Impoverished, slowed, perseverative thinking, with confusion or disorientation; or

(c) Labile, shallow, or coarse affect.

(4) We base the severity of the functional psychotic or nonpsychotic disorder, excluding alcoholism or drug addiction, on:

(a) Clinical assessment of these twelve symptoms: depressed mood, suicidal trends, verbal expression of anxiety or fear, expression of anger, social withdrawal, motor agitation, motor retardation, paranoid behavior, hallucinations, thought disorder, hyperactivity, preoccupation with physical complaints; and

(b) Clinical assessment of the intensity and pervasiveness of your symptoms and their effect on work activities.

(5) We base the severity rating for a functional mental impairment on accumulated severity ratings for the twelve symptoms in subsection (4)(a) of this section as follows:


Symptom Ratings or Condition Severity Rating
(a) The functional mental impairment is diagnosed with psychotic features;

(b) You have had two or more hospitalizations for psychiatric reasons in the past two years;

(c) You have had more than six months of continuous psychiatric hospital or residential treatment in the past two years;

(d) The overall assessment of symptoms is rated three; or

(e) At least three symptoms are rated three or higher.

3
(a) The overall assessment of symptoms is rated four; or

(b) At least three symptoms are rated four or five.

4
(a) The overall assessment of symptoms is rated five; or

(b) At least three symptoms are rated five.

5

(6) If you have more than one type of mental impairment, we assign a severity rating as follows:


Condition Severity Rating
(a) Two or more disorders with ratings of three; or

(b) One or more disorders rated three; and one rated four.

4
(c) Two or more disorders rated four. 5

(7) We deny incapacity when you do not have a significant physical impairment and your overall mental severity rating is one or two;

(8) We approve incapacity when you have an overall mental severity rating of five, regardless of whether you have a physical impairment.

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NEW SECTION
WAC 388-448-0060
PEP step III -- How we determine the severity of physical impairments.

We must decide if your physical impairment is serious enough to limit your ability to be gainfully employed. "Severity of a physical impairment" means the degree that an impairment restricts you from performing basic work-related activities (see WAC 388-448-0010). Severity ratings range from one to five, with five being the most severe. We will assign severity ratings according to the table in WAC 388-448-0035.

(1) We assign to each physical impairment a severity rating that is supported by medical evidence.

(2) If your physical impairment is rated two, and there is no mental impairment or a mental impairment that is rated one, we deny incapacity.

(3) If your physical impairment is consistent with a severity rating of five, we approve incapacity.

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NEW SECTION
WAC 388-448-0070
PEP step IV -- How we determine the severity of multiple impairments.

If you have more than one impairment we decide the overall severity rating by deciding if your impairments have a combined effect on your ability to be gainfully employed. Each diagnosis is grouped by affected organ or function into one of twelve "body systems." The twelve body systems consist of:

(a) Musculo-skeletal,

(b) Special senses,

(c) Respiratory,

(d) Cardiovascular,

(e) Digestive,

(f) Genito-urinary,

(g) Hemic and lymphatic,

(h) Skin,

(i) Endocrine,

(j) Neurological,

(k) Neoplastic, and

(l) Immune systems.

We follow these rules when there are multiple impairments:

(1) We group each diagnosis by body system.

(2) When you have two or more diagnosed impairments that limit work activities, we assign an overall severity rating as follows:


Your Condition Severity Rating
(a) All impairments are in the same body system, are rated two and there is no cumulative effect on basic work activities. 2
(b) All impairments are in the same body system, are rated two and there is a cumulative effect on basic work activities.

(c) All impairments are in different body systems, are rated two and there is a cumulative effect on basic work activities.

3
(d) Two or more impairments are in different body systems and are rated three.

(e) Two or more impairments are in different body systems; one is rated three and one is rated four.

4
(f) Two or more impairments in different body systems are rated four. 5

(3) We deny incapacity when the overall severity rating is two.

(4) We approve incapacity when the overall severity rating is five.

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NEW SECTION
WAC 388-448-0080
PEP step V -- How we determine your ability to function in a work environment if you have mental impairment.

If you have a mental impairment we evaluate your cognitive and social functioning in a work setting. Functioning means your ability to perform the tasks that would be required of you on the job and your ability to get along with your co-workers, supervisors and other people you would be in contact with while on the job.

(1) We evaluate cognitive factors by assessing your ability to:

(a) Understand, remember, and follow simple, one- or two-step instructions;

(b) Understand, remember, and follow complex instructions, with three or more steps;

(c) Learn new tasks;

(d) Exercise judgment and make decisions; and

(e) Perform routine tasks without undue supervision.

(2) We approve incapacity when the practitioner's evaluation shows you are:

(a) At least moderately impaired in your ability to understand, remember, and follow simple instructions and at least moderately limited in your ability to:

(i) Learn new tasks, exercise judgment, and make decisions; and

(ii) Perform routine tasks without undue supervision; or

(b) Able to understand, remember, and follow simple instructions, but are:

(i) At least moderately impaired in the ability to understand, remember, and follow instructions with three or more steps; and

(ii) Markedly impaired in the ability to learn new tasks, exercise judgment and make decisions, and perform routine tasks without undue supervision.

(3) The practitioner's evaluation reports your social factors after assessing your ability to:

(a) Relate appropriately to coworkers and supervisors;

(b) Relate appropriately in contacts with the public;

(c) Tolerate the pressures of a work setting;

(d) Perform self-care activities, including personal hygiene; and

(e) Maintain appropriate behavior in a work setting.

(4) We approve incapacity if you are rated at least two in one area of social functioning and at least three in all other areas of social functioning.

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NEW SECTION
WAC 388-448-0090
PEP step V -- How we determine your ability to function in a work environment if you have a physical impairment.

In Step V of the PEP we review the medical evidence you provide and make a determination of how your physical impairment prevents you from working. This determination is then used in Steps VI and VII of the PEP to determine your ability to perform either work you have done in the past or other work.

(1) "Exertion level" means the ability to lift, carry, stand and walk with the strength needed to fulfill job duties in the following work categories. For this section, "occasionally" means less than one-third of the time and "frequently" means one-third to two-thirds of the time. We only consider your strength, mobility, and flexibility. We review any work limits you have in the following areas, and then assign an exertion level and determine exertional limitations.

The following table is used to determine your exertion level. Included in this table is a strength factor, which is your ability to perform physical activities, as defined in Appendix C of the Dictionary of Occupational Titles (DOT), Revised Edition, published by the U.S. Department of Labor.


If you Then we assign this exertion level
(a) Can not lift at least two pounds or stand and/or walk. Severely limited
(b) Can lift ten pounds maximum and frequently lift and/or carry lightweight articles. Walking and standing are only required for brief periods. Sedentary
(c) Can lift twenty pounds maximum and frequently lift and/or carry objects weighing up to ten pounds. Walk six out of eight hours per day or stand during a significant portion of the workday, with sitting and pushing/ pulling arm or leg movements most of the day. Light
(d) Can lift fifty pounds maximum and frequently lift and/or carry up to twenty-five pounds. Medium
(e) Can lift one hundred pounds maximum and frequently life and/or carry up to fifty pounds. Heavy

(2) "Exertionally-related limitation" means a restriction in mobility, agility or flexibility in the following twelve activities: balancing, bending, climbing, crawling, crouching, handling, kneeling, pulling, pushing, reaching, sitting, and stooping. If you have exertionally-related limitations, we consider them in determining your ability to work.

(3) "Functional physical capacity" means the degree of strength, agility, flexibility, and mobility you can apply to work-related activities. We consider the effect of the physical impairment on the ability to perform work-related activities when the physical impairment is assigned an overall severity rating of three or four. We determine functional physical capacity based on your exertional, exertionally related and non-exertional limitations. All limitations must be substantiated by the medical evidence and directly related to the diagnosed impairment(s).

(4) "Nonexertional physical limitation" means a restriction on work activities that does not affect strength, mobility, agility, or flexibility. Examples are:

(a) Environmental restrictions which could include, among other things, your inability to work in an area where you would be exposed to chemicals; and

(b) Workplace restrictions, such as impaired hearing or speech, which would limit the types of work environments you could work in.

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Reviser's note: The typographical error in the above section occurred in the copy filed by the agency and appears in the Register pursuant to the requirements of RCW 34.08.040.
NEW SECTION
WAC 388-448-0100
PEP step VI -- How we evaluate capacity to perform relevant past work.

If your overall severity rating is three or four and we have reached this stage of the PEP and have not approved or denied your application, we decide if you can do the same or similar work as you have done in the past. We look at your current physical and/or mental limitations and vocational factors to make this decision. Vocational factors are education, relevant work history, and age.

(1) We evaluate education in terms of formal schooling or other training that enables you to meet job requirements. We classify education as:


If you Then your education level is
(a) Can not read or write a simple communication, such as two sentences or a list of items. Illiterate
(b) Have no formal schooling beyond the eleventh grade; or

(c) Have participated in special education.

Limited education
(d) Have received a high school diploma or general equivalency degree (GED); or

(e) Have received skills training and were awarded a certificate, degree or license.

High school and above level of education

(2) We evaluate your work experience to determine if you have relevant past work. "Relevant past work" means work that:

(a) Is normally done for pay or profit. We exclude work done in a sheltered workshop, a job where you were given special consideration, or activities you may have performed as a student or homemaker;

(b) Has been performed in the past five years; and

(c) You have done long enough for you to have acquired the knowledge and skills to continue performing the job. You must meet the specific vocational preparation level as defined in Appendix C of the Dictionary of Occupational Titles.

(3) For each relevant past work situation you have had, we determine:

(a) The exertional or skill requirements of the job; and

(b) Current cognitive, social, or nonexertional factors that significantly limit your ability to perform past work.

(4) After considering vocational factors, we approve or deny incapacity based on the following:


If you Then we take this action on incapacity
(a) Have the physical or mental ability to perform past work and there is no significant cognitive, social or nonexertional limitation. Deny
(b) Have recently acquired specific work skills through completion of vocational training, enabling you to work within your current physical or mental capacities. Deny
(c) Are fifty-five years of age or older and have an impairment that is assigned an overall severity rating or at least three and do not have the physical or mental ability to perform past work or do not have work experience. Approve

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NEW SECTION
WAC 388-448-0110
PEP step VII -- How we evaluate your capacity to perform other work.

If we decide you cannot do work that you've done before, we then decide if you can do any other work. In making this decision, we again consider vocational factors of age, education and limited English proficiency (LEP).

(1) We approve incapacity if you have a physical impairment only and meet the vocational factors below:


Highest work level assigned by the practitioner Your age Your education level Other vocational factors
Sedentary Any age Any level Does not apply
Light Fifty-five and older Any level Does not apply
Light Thirty-five and older Illiterate or LEP Does not apply
Light Eighteen and older Limited education Does not have any past work
Medium Fifty and older Limited education Does not have any past work
Medium Fifty-five and older Any level Does not apply
Heavy Fifty-five and older Any level Environmental restrictions apply

(2) We approve incapacity when you have a mental impairment only and meet the age and social functioning limitations below:


Social limitation Age
(a) Can not appropriately relate to coworkers and supervisors (rated three); and

(b) Can not tolerate the pressures of a work setting (rated four).

Fifty years and older
(c) Can not tolerate the pressures for a work setting (rated five). Eighteen to fifty-four
(d) A mental disorder severity rated four; and

(e) One or more symptoms from WAC 388-448-0050(4) (rated five); and

(f) Can not appropriately relate to coworkers and supervisors (rated three); and

(g) Can not tolerate the pressures of a work setting (rated four).

Eighteen to forty-nine

(3) We approve incapacity when you have both mental and physical impairments and vocational factors interfere with working as follows:


Your age Your education Your other restrictions
Any age Any level (a) Can not appropriately relate to coworkers and supervisors (rated three; and

(b) Can not tolerate pressures of a work setting (rated four).

Fifty or older Limited education (c) Restricted to medium work level or less.
Eighteen to forty-nine Limited education (d) Restricted to light work level.

(4) If we do not find that you are incapacitated by the end of Step VII of the PEP, an administrative review team (ART) makes the incapacity decision. The review team consists of two or more persons within the community service office (CSO) who are not in the position of providing direct eligibility or incapacity services to you. The ART reviews the medical evidence and your vocational factors.

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NEW SECTION
WAC 388-448-0120
How we decide how long you are incapacitated.

We decide the maximum length of time you are eligible for GAU based on incapacity according to the medical evidence and expected length of recovery from the incapacitating condition as follows:

(1) Thirty-six months when we decide it is evident you meet federal disability criteria to receive Social Security Supplemental Security Income (SSI); or

(2) Twelve months.

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NEW SECTION
WAC 388-448-0130
Treatment and referral requirements.

We refer you to medical providers or other agencies for treatment or rehabilitation to improve your ability to engage in gainful employment or reduce your need for GAU. "Available medical treatment" means medical, surgical, chemical dependency, or mental health services, or a combination of them.

(1) We give you written information regarding your treatment requirements when you are initially approved, and at each redetermination.

(2) You must accept and follow through on required medical treatment unless you have a convincing reason for not doing so. Examples of good cause are found in WAC 388-448-0140.

(3) If your basic claim of incapacity is alcoholism or drug dependency, we refer you for evaluation under the alcoholism and drug addiction treatment and support act (ADATSA).

(4) We may require you to undergo alcohol or drug treatment before re-evaluating eligibility for GAU.

(5) You may request a fair hearing if you disagree with the treatment or referral requirements we set for you. If you request a fair hearing we will not reduce or stop your benefits as a result of your refusal to follow the requirement until the fair hearing is decided.

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NEW SECTION
WAC 388-448-0140
Good cause for refusing medical treatment or other agency referrals.

We may determine that you have good cause for refusing required treatment or referrals to other agencies. We may require you to provide documentation to support your good cause claim. Valid reasons for refusing treatment and other agency referrals include, but are not limited to, the following:

(1) Treatment referrals:

(a) You are so fearful of the treatment that your fear could interfere with the treatment or reduce its benefits;

(b) Treatment could cause further limitations or loss of a function or an organ and you are not willing to take that risk;

(c) You practice an organized religion that prohibits treatment; or

(d) Treatment is not available without cost to you.

(2) Treatment or other agency referrals:

(a) You did not have enough information on the requirement or did not receive written notice of the requirement;

(b) The requirement was made in error;

(c) You are temporarily unable to participate because of documented interference, or

(d) Your medical condition or limitations are consistent with the definition of necessary supplemental accommodation (NSA), WAC 388-200-1300, and your condition or limitations contributed to your refusal.

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NEW SECTION
WAC 388-448-0150
Penalty for refusing medical treatment or other agency referrals.

(1) If you refuse required treatment or agency referral without having good cause, we will stop your GAU benefits.

(2) We stop your GAU benefits until you agree to accept and pursue the required treatment service or referral.

(3) If you reapply, you must wait for a penalty period to pass before you begin getting benefits. The penalty is based on how often you have refused:


Refusal Penalty
First One week
Second within six months One month
Third and subsequent within one year Two months

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NEW SECTION
WAC 388-448-0160
Review of your incapacity.

(1) In order to review your incapacity, we must have sufficient written medical information based on an examination within the last sixty days. We may also require information about your progress with required treatment or agency referrals according to WAC 388-448-0130.

(2) We cannot extend GAU eligibility beyond the current eligibility end date if we do not receive current medical evidence that we decide is enough to show that you continue to be incapacitated.

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NEW SECTION
WAC 388-448-0170
Termination requirement -- How we determine you are no longer incapacitated.

(1) Before we can decide you are no longer incapacitated, we must demonstrate that at least one of the following conditions exists:

(a) The incapacitating condition has clearly improved since incapacity was established. "Clear improvement" means that since incapacity was established:

(i) The physical or mental impairment that incapacity was based on has decreased in severity to the point where you are capable of gainful employment;

(ii) The effect of that impairment on work-related activities has been significantly decreased through treatment or rehabilitation, and you are now capable of gainful employment; or

(iii) We decide you are gainfully employed.

(b) There was a previous error in the eligibility decision. "Previous error" means incapacity was previously established based on:

(i) Faulty or insufficient information; or

(ii) We made a procedural error in one of our previous determinations, based on a rule in effect at the time.

(2) If we decide you are clearly improved but are receiving services through the division of vocational rehabilitation (DVR), we have the option of approving continued GAU through an exception to rule (ETR).

(3) We do not apply the clear improvement or previous error criteria when:

(a) You have a break in assistance of over thirty days and do not meet the criteria for retroactive reinstatement as required under WAC 388-448-0190; or

(b) You do not meet the categorical eligibility requirements for the general assistance unemployable program.

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NEW SECTION
WAC 388-448-0180
How we redetermine your eligibility if it is evident you meet federal disability criteria for SSI.

We may extend your incapacity period up to thirty-six months from the last date of incapacity determination without additional medical documentation when it is evident that you meet federal disability criteria for Supplemental Security Income (SSI) eligibility.

(1) We determine your eligibility at the end of the thirty-six-month period, using current medical evidence.

(2) If you applied for SSI, were denied, and the denial was upheld by an administrative appeal before the end of the thirty-six-month incapacity period, we adjust the incapacity period to be the later of the following dates:

(a) The end of the previously established incapacity period that was based on current medical evidence; or

(b) Sixty days after the SSI denial date.

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NEW SECTION
WAC 388-448-0190
Reinstating your eligibility after termination due to lack of medical evidence.

If your assistance was terminated due to lack or insufficiency of medical evidence, we reinstate your eligibility the day following the termination date if the following conditions are met:

(1) The termination was not due to your failure to cooperate in gathering the evidence;

(2) You provided the medical evidence within thirty days after the termination, establishing that you have been incapacitated since the date of termination; and

(3) The medical evidence substantiates incapacity.

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NEW SECTION
WAC 388-448-0200
Eligibility for general assistance unemployable pending SSI eligibility.

If you are applying for SSI and we determine you may become eligible for SSI, we approve you for GAU benefits. The assistance is authorized through the month SSI payments begin if you:

(1) Apply for SSI and follow through with your application; and

(2) Assign the initial or reinstated SSI payment to DSHS as provided under WAC 388-448-0210; and

(3) Are otherwise eligible.

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NEW SECTION
WAC 388-448-0210
Assignment and recovery of interim assistance.

You can get assistance to meet your basic needs from only one government source at a time. When you are approved for SSI, you may receive a payment going back to the date you applied for SSI. This means you are being paid a back payment for your basic needs. When you have received GAU during that time period, the amount paid to you in the form of GAU must be reimbursed to the state.

(1) "Assign" means that the Social Security Administration (SSA) will pay DSHS directly from your reimbursement amount. The assignment will be up to the amount of interim assistance we provide to you.

(2) "Interim assistance" means the state funds we provide to you to meet basic needs during:

(a) The time between your SSI application date and the month recurring SSI payments begin; or

(b) The period your SSI payments were suspended or terminated, and later reinstated for that period.

(3) We pay up to twenty-five percent of the interim assistance reimbursement that we receive from the SSA to the attorney who has successfully represented you in your effort to receive SSI.

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REPEALER

     The following sections of the Washington Administrative Code are repealed:
WAC 388-235-1500 Persons in institutions.
WAC 388-235-5000 Incapacity determination--Process.
WAC 388-235-5050 Waiver of medical documentation and progressive evaluation process (PEP).
WAC 388-235-5060 Determination of capacity to engage in gainful employment.
WAC 388-235-5070 Sources of medical evidence.
WAC 388-235-5080 Medical evidence requirements.
WAC 388-235-5090 Assigning severity ratings.
WAC 388-235-5100 PEP step I--Review of medical documentation.
WAC 388-235-5200 PEP step II--Severity of mental impairments.
WAC 388-235-5300 PEP step III--Severity of physical impairments.
WAC 388-235-5400 Progressive evaluation process--Step IV--Multiple impairments.
WAC 388-235-5500 Progressive evaluation process--Step V--Functional mental capacity.
WAC 388-235-5600 Progressive evaluation process--Step V--Functional physical capacity.
WAC 388-235-5700 Evaluating vocational factors for progressive evaluation process--Steps VI and VII.
WAC 388-235-5800 Progressive evaluation process--Step VI--Evaluate capacity to perform past work.
WAC 388-235-5900 Progressive evaluation process--Step VII--Evaluating capacity to perform other work.
WAC 388-235-6000 Duration of assistance based on incapacity.
WAC 388-235-7000 Purpose of referrals.
WAC 388-235-7100 Treatment and referral requirements.
WAC 388-235-7200 Other agency referral requirements.
WAC 388-235-7300 ADATSA referral requirements.
WAC 388-235-7400 Protective payments.
WAC 388-235-7500 Good cause for refusing medical treatment or other agency referrals.
WAC 388-235-7600 Sanction for refusing medical treatment or other agency referrals.
WAC 388-235-8000 Redetermination of financial eligibility.
WAC 388-235-8100 Redetermination of incapacity.
WAC 388-235-8130 Determining a recipient is no longer incapacitated--Termination proviso.
WAC 388-235-8140 Redetermination of eligibility based on mental retardation.
WAC 388-235-8150 Redetermination for a recipient appearing to meet federal disability criteria for SSI.
WAC 388-235-8200 Reinstating eligibility after termination due to lack of medical evidence.
WAC 388-235-9000 How benefits from other programs affect your eligibility for general assistance-unemployable.
WAC 388-235-9100 GAU pending SSI eligibility.
WAC 388-235-9200 Assignment and recovery of interim assistance.
WAC 388-235-9300 GAU to an SSI recipient whose SSI check is lost, stolen, or missent.

Washington State Code Reviser's Office