WSR 00-18-078

PERMANENT RULES

DEPARTMENT OF

LABOR AND INDUSTRIES

[ Filed September 1, 2000, 4:56 p.m. ]

Date of Adoption: September 1, 2000.

Purpose: Chapter 296-19A WAC will replace chapter 296-18A WAC as the regulatory basis for vocational rehabilitation for industrial insurance. New sections WAC 296-15-500 and 296-15-510 will move regulations applicable to vocational services provided in the self-insured arena to the self-insured chapter.

Citation of Existing Rules Affected by this Order: Repealing chapter 296-18A WAC.

Statutory Authority for Adoption: RCW 51.04.020, 51.04.030, 51.32.095, 51.36.100, 51.36.110.

Adopted under notice filed as WSR 00-10-106 on May 3, 2000, 11:02 a.m.

Changes Other than Editing from Proposed to Adopted Version: Changes were made in proposed WAC 296-19A-010, 296-19A-020, 296-19A-030, 296-19A-040, 296-19A-050, 296-19A-060, 296-19A-070, 296-19A-080, 296-19A-090, 296-19A-100, 296-19A-120, 296-19A-130, 296-19A-140, 296-19A-170, 296-19A-210, 296-19A-220, 296-19A-240, 296-19A-250, 296-19A-260, 296-19A-320, 296-19A-450 and 296-19A-480, based upon public input and further research by the department. For details about the specific changes and the reasons for the changes, please see the following table:


SECTION PROPOSED WAC FINAL WAC EXPLANATION OF CHANGES
010 (1) (a) -- "...in the labor market to be gainfully employed on a reasonably continuous basis..."

(a)--"...in the labor market to be capable of performing and obtaining gainful employment on a reasonably continuous basis..." Inserted language to make this definition consistent with the ruling in Leeper v. Department of Labor and Industries, 123 Wn.2d 803, 872 P.2d 507 (1994).
010 (2)
010 (3) "...or other entity..." "...or other legal entity..." Clarifies that nonlegal entities are not considered vocational providers.
"injured or ill workers." "injured or ill workers, pursuant to RCW 51.32.095." Clarifies that vocational providers are those providers that are delivering services specifically addressed in statute, RCW 51.32.095.
010 (4) It is the area in which a worker would seek gainful employment. The labor market must be within a reasonable commuting distance and be consistent with the industrially injured or ill worker's physical and mental capacities. Generally, the worker's relevant labor market is the geographic area where the worker was last gainfully employed. The labor market must be within a reasonable commuting distance and be consistent with the industrially injured or ill worker's physical and mental capacities. The exceptions to this rule are listed in the table below: Corrects a technical omission from the proposed draft.
010(5)
010(6) It is a description of the knowledge, skills, abilities, and physical requirements necessary for a worker to perform a job. It is the gathering, evaluating, and recording of accurate, objective data about the characteristics of a particular job. Clarifies and improves the definition of job analysis.
010(7)
010(8)
010(9)
010(10)
020
030 (1)--"...including making an estimate of physical capacities or restrictions. The attending physician may review the vocational plan, and if the attending physician feels that the injured worker is not physically capable of carrying out the plan, or the plan is unnecessary, based on current medical findings, shall notify the referral source immediately of this opinion and the reasons for that opinion." (1)--"...including making an estimate of the worker's physical or mental capacities that affect the worker's employability. Clarifies that the physician should consider not only physical limitations but also any mental limitations that would, for example, prevent the worker from becoming employable from a vocational plan. The physician is elsewhere required to report medical opinion and should not be regulated in this way in a WAC chapter governing vocational rehabilitation.
040 "All vocational services must be preauthorized by the referral source."

"The referral source may make one or more..."

"...plan;"

For example, when a vocational rehabilitation provider receives a referral for early intervention services, the provider may only provide the authorized early intervention services. No other services are authorized until the referral source makes another referral to the vocational rehabilitation provider."

"All vocational services must be preauthorized"

"The department may make one or more..."

"...plan development; plan implementation;"

Removed

That the referral source, whether the department or self-insurer, must preauthorize vocational services is understood.

The department uses the listed categories of vocational referrals and recognizes that self-insurers may use other methods to categorize their referrals.

This clarifies that these are separate activities with separate referrals.

With other wording changes, this language was felt to be unnecessarily repetitive.

045 None "Which rules under "DEPARTMENT VOCATIONAL REHABILITATION REFERRALS" apply only to the department? WAC 296-19A-050 through 296-19A-130 pertain to referrals made only by the department." Despite the title of this part of chapter 296-19A WAC, there was some confusion as to the applicability of WAC 296-19A-050 to 296-19A-130 to self insurers. This new section clarifies that the sections pertain to department referrals. Self-insurers will continue to be governed by language in chapter 296-15 WAC.
050 (5) -- "performing on-site and telephone job analyses; and"

(6) -- "...and obtaining a preferred worker card for the worker, if appropriate."

(5) -- "performing job analyses; and"

(6) -- "...and educating the worker on the preferred worker benefit, if appropriate."

WAC 296-19A-170 of this chapter addresses the requirements for conducting job analyses, so the detail is not necessary here.

Preferred worker assistance is not necessary in early intervention, but it is important to educate workers on the benefits entitled to them.

060 (1) -- "...to the department every thirty days…"

(1)--"...every thirty days from the date of the referral."

(1)(a) -- "...employer of injury or current employer;"

(1)(d) -- "...intends to take and the expected time frame..."

(2)(e) -- "...salary or wage;"

(2)(h) -- None

(1) -- "...to the department, and upon request, to the injured worker or the injured worker's representative, every thirty days..."

(1) -- "... every thirty days from the date of the referral, summarizing progress during the most recent reporting period."

(1)(a) -- "...employer of injury or current employer, and medical provider(s);"

(1)(d) -- "...intends to take to overcome barriers and the expected time frame..."

(2)(e) -- "...salary or wage, or document attempts to obtain this information;"

(2)(h) -- "Any other supporting documentation."

While information is presently disclosable, sharing progress reports upon request will help facilitate worker participation in the vocational rehabilitation process.

Clarifies the intent of the department to receive progress reports that document recent activities on the referral.

Addresses need of the department to have a summarized record of contacts with medical providers that occur during the referral.

Clarifies the intent of this requirement.

The department recognizes it may not be possible in all cases to obtain this information on a referral.

Clarifies the need to attach any other relevant information to the closing report, even though not specifically spelled out here.

070 (2)(a)(ii) -- "A job analysis; and"

2)(a)(iii) -- "...information supporting the provider's recommendation;"

(2)(b)(iii) -- "Labor market information supporting the provider's recommendations;"

(3) -- "The provider must immediately notify the department in writing if the worker..."

(4) -- "The provider must immediately inform the department orally and in writing if the worker..."

(4) -- "This report must include:"

(2)(a)(ii) -- "A job analysis or physical capacities information when a JA is not possible; and"

(2)(a)(iii) -- "information supporting the provider's recommendation when not returning to the employer of injury or current employer;"

(2)(b)(iii) -- None

(3) -- "The provider must notify the department in writing within two working days if the worker..."

(4) -- "The provider must notify the department orally and in writing within two working days if the worker..."

(4) -- "This report must specify and/or document attempts to obtain the following information:"

The department recognizes that, in a limited number of cases, a JA may not be possible, and in those cases, physical capacities information may be submitted instead.

Clarifies intent.

This information is not necessary in this case.

Clarifies intent.

Clarifies intent.

The department recognizes that, in some situations, not all information listed will be available to the vocational provider.

080 "...to the department every thirty days..."

"...every thirty days from the date of the referral."

(4) -- "...intends to take and the expected time frame..."

"...to the department, and upon request, to the injured worker or the injured worker's representative, every thirty days..."

"...every thirty days from the date of the referral, summarizing progress during the most recent reporting period."

(4) -- "...intends to take to overcome barriers and the expected time frame..."

While information is presently disclosable, sharing progress reports upon request will help facilitate worker participation in the vocational rehabilitation process.

Clarifies the intent of the department to receive progress reports that document recent activities on the referral.

Clarifies the intent of this requirement.

090 (1) -- "Vocational counseling;"

(2) -- "Identifying training needs..."

(1) -- "Vocational counseling and occupational testing;"

(2) -- "Identifying job goal, training needs..."

Clarifies intent.

This is a needed addition because the purpose of a vocational plan is, in part, to identify a job goal for which the worker will receive training.

100 (1) -- "...to the department every thirty days..."

(1) -- "...every thirty days from the date of the referral."

(1)(e) -- "...intends to take and the expected time frame..."

(1) -- "...to the department, and upon request, to the injured worker or the injured worker's representative, every thirty days..."

(1) -- "...every thirty days from the date of the referral, summarizing progress during the most recent reporting period."

(1)(e) -- "...intends to take to overcome barriers and the expected time frame..."

While information is presently disclosable, sharing progress reports upon request will help facilitate worker participation in the vocational rehabilitation process.

Clarifies the intent of the department to receive progress reports that document recent activities on the referral.

Clarifies the intent of this requirement.

110
120 (1) -- "...to the department every thirty days..."

(1) -- "...every thirty days from the date of the referral."

(1) -- "...to the department, and upon request, to the injured worker or the injured worker's representative, every thirty days..."

(1) -- "...every thirty days from the date of the referral, summarizing progress during the most recent reporting period."

While information is presently disclosable, sharing progress reports upon request will help facilitate worker participation in the vocational rehabilitation process.

Clarifies the intent of the department to receive progress reports that document recent activities on the referral.

130 "What are forensic services?"

"...to resolve vocational issues."

"What are the requirements for a forensic evaluation?"

"...to resolve vocational issues. Except when necessary to make a determination regarding whether a deceased worker was totally and permanently disabled at the time of death, the department will only authorize a forensic evaluation when previous vocational referrals have not resolved an injured worker's vocational issues"

Clarifies intent.

Clarifies the situations in which a forensic referral will be made.

140 (1)(d) -- "The LMS must list all employer contacts, positive and negative."

(2)(a) -- "...if the LMS shows enough jobs to conclude the worker's lack of employment is not the consequence of his/her industrial injury;"

(2)(b) -- "...if the LMS shows the proposed job goal exists in sufficient numbers..."

(3) -- "The labor market survey report must include:"

(1)(d) -- "The LMS must note the name of the surveyor and list all employer contacts, positive and negative, and the dates of contact."

(2)(a) -- "...if the LMS shows enough jobs suitable for that injured worker, consistent with WAC 296-19A-010(1);"

(2)(b) -- "...if the LMS shows the proposed job goal, and jobs suitable for the injured worker, consistent with WAC 296-19A-010(1), exist in sufficient numbers..."

(3) -- "The labor market survey report must include, or document attempts to obtain:"

This change was based on public input and the change was deemed necessary.

This change in language reflects the change to the definition of employability from the Leeper decision.

This change in language reflects the change to the definition of employability from the Leeper decision.

The department recognizes that, in some situations, not all information listed will be available to the vocational provider.

170 (1) -- "...and job title and DOT/O*NET number;" (1) -- "...and job title and DOT number;" O*NET is a system that is being developed for the future and is not yet available.
(2) -- "Note where the provider completed the job analysis."

(2) -- "Note the name of the vocational provider who completed the job analysis, where the provider completed the job analysis and the date of the job analysis." It is necessary to identify who actually completes a job analysis, making this change necessary. In addition, the date requirement for the job analysis was moved from subsection (1) to this subsection for clarity purposes.
(3) -- "Describe the essential functions and all other tasks required to perform the job."

It was recognized that this section needed to more clearly ask for a description of the job for which the analysis is being performed. All other items in this list were renumbered downward.
(4) -- "...describe the knowledge, skills, and abilities required to perform..." (5) -- "...describe the competencies required to perform..."

The term "competencies" is a vocational term that is more appropriate; this item was also renumbered.
(9) -- "The signature of the author and date completed. (10) -- "The signature of the vocational provider presenting the job analysis for review and date signed." Job analyses may sometimes be used by other counselors for similar jobs; therefore, it is important to make this change to clarify the appropriate signature and date needed.
180
190
200
210 "...the department adopts the following qualifications requirements:" "...the department shall only issue a provider number to persons, firms, partnerships, corporations, and other legal entities that meet the following qualifications requirements:" Clarifies that the department will not issue provider number to any provider that does not meet the qualifications in WAC 296-19A-210.
(1)(a) -- "...effective on or after September 1, 2000..." (1)(a) -- "...effective on or after December 1, 2000..." Reflects extension of effective dates due to continuance of CR-102.
(1)(b) -- "...prior to September 1, 2000, will be required to apply for a provider number and will be given four years from September 1, 2000..." (1)(b) -- "...prior to December 1, 2000, will be required to apply for a provider number and will be given six years from December 1, 2000..." Reflects extension of effective dates due to continuance of CR-102. Also reflects department decision to extend the transition period for vocational providers to meet new qualifications requirements from four to six years.
(2)(a) -- "...beginning on or after September 1, 2000, the VRC/ supervisor must provide proof of three years..."

(2)(a) -- "...beginning on or after September 1, 2000, the VRC/ supervisor must provide proof of five years..."

Reflects department decision to require VRC supervisors to have five, rather than three, years of experience working with Washington state injured workers. This change makes the requirements consistent with current contracts and helps insure quality.
(2)(b) -- "...prior to September 1, 2000, will be required to apply for a provider number and will be given four years from September 1, 2000..."

(2)(b) -- "...prior to December 1, 2000, will be required to apply for a provider number and will be given six years from December 1, 2000..."

Reflects extension of effective dates due to continuance of CR-102. Also reflects department decision to extend the transition period for vocational providers to meet new qualifications requirements from four to six years.
(2)(c) -- None (2)(c) -- "The VRC supervisor is responsible for ensuring that all the work performed by an intern for the department or self-insurer conforms with Title 51 RCW, department rules and department policies." This clarifies the relationship between supervisor and intern in a manner that is consistent with the department's current vocational provider contracts. It ensures that VRC supervisors adequately oversee the work of their interns.
(3) -- "...injured or ill workers." (3) -- "...injured or ill workers, and must possess a CRC or ABVE certification." Change reflects need to ensure that those performing forensic evaluations are both highly qualified and have experience in forensic services.
(4)(a) -- "...effective on or after September 1, 2000..." (4)(a) -- "...effective on or after December 1, 2000..." Reflects extension of effective dates due to continuance of CR-102.
(4)(b) -- "Interns must obtain one of the required VRC certifications..."

(4)(b) -- "Interns not registered with the department and applying for a provider number with the department on or after December 1, 2000 must obtain one of the required VRC certifications..." Clarifies that only those interns who register after the new qualifications requirements become effective must meet the new qualifications within one year of completion of their internship.

(4)(c) -- "Interns registered with the department prior to September 1, 2000, will be required to apply for a provider number with the department and may work as an intern an additional four years from September 1, 2000, if necessary, to meet the new VRC requirements."

(4)(c) -- "Interns registered with the department prior to December 1, 2000, will be required to apply for a provider number with the department and may work as an intern until the end of their current internship. Upon completion of the internship the intern may submit an application to the department as a VRC. These providers must obtain one of the required VRC certifications by October 31, 2006." This change allows current vocational interns to finish their internships in accordance with their agreements with the department, then work as a VRC for the remainder of the six-year transition period. All interns in this category must meet the VRC qualifications by the end of the transition period (like current VRCs) in order to maintain their provider numbers.

(4)(d) -- None (4)(d) -- All interns are required to conform to Title 51 RCW, department rules, and department policies. All interns granted a provider number by the department must be supervised by a VRC Supervisor." This clarifies the relationship between supervisor and intern in a manner that is consistent with the department's current vocational provider contracts. It ensures that interns follow department law and policy.
(5) -- "...prior to September 1, 2000, who do not meet the above qualification requirements within the four-year period..." (5) -- "...prior to December 1, 2000, who do not meet the above qualification requirements within the six-year period..." Reflects extension of effective dates due to continuance of CR-102.

(6)(a-e) -- "Any provider who elects to operate as a vocational firm, partnership, corporation or other entity ..." (6)(a-e) -- "Providers..." This wording change clarifies the applicability of the business requirements to vocational providers.
(6)(a, c & d) -- "...with regard to business operations."

"...in which to discuss vocational services issues."

"...regular business hours, Monday through Friday"

(6)(a) -- "...with regard to business operations. In order to be eligible to receive referrals from the department, providers must satisfy the requirements set forth in this subsection in every service location in which they wish to operate."

"...in which to discuss vocational services issues. In order to be eligible to receive referrals from the department, providers must satisfy the requirements set forth in this subsection in every service location in which they wish to operate."

"...regular business hours, Monday through Friday. In order to be eligible to receive referrals from the department, providers must satisfy the requirements set forth in this subsection in every service location in which they wish to operate."

This change clarifies the applicability of the business requirements for providers that operate in multiple department service areas. It also distinguishes between the department, which uses service locations, and the self-insured community, which does not.
(6)(e) -- "Providers must maintain..." (6)(e) -- "In order to receive referrals from the department, providers must maintain..."

This change recognizes that some providers do not wish to work with the department at all. In those cases, it is not necessary to have an electronic hook-up with the department's systems.

(7) -- None The department may assign a provider number to a vocational rehabilitation firm, partnership, corporation or other legal entity so long as substantial control over the daily management of the vocational rehabilitation firm, partnership, corporation or other legal entity is performed by a VRC that satisfies the qualifications set forth in this rule." Responds to public comment questioning whether ownership and/or management of a vocational firm must also meet individual qualifications requirements.
220 "Can a vocational provider deliver vocational rehabilitation services without meeting the above qualifications and receiving a provider number from the department? No. Only qualified vocational rehabilitation providers will be given provider numbers." "Can a vocational provider deliver vocational services pursuant to RCW 51.32.095 without receiving a provider number from the department? No. The department may only issue provider numbers to persons, firms, partnerships, corporations and other legal entities that satisfy the qualification requirements in WAC 296-19A-210." This language change is intended to clarify that only vocational providers with provider numbers can deliver vocational services as defined here. This does not relate to providers not delivering services pursuant to RCW 51.32.095.
230
240 (2) -- None (2) -- "For information regarding the formal appeals process refer to chapter 51.52 RCW" This change addresses questions regarding the process for formal audit appeals.
250 "The department must give at least forty-eight hours written notice to a provider..." "The department will give 10 working days written notification to a provider..." This change makes the notification requirements for vocational provider audits consistent with those for medical provider audits.
260 (8) -- None (8) -- "Assessment of penalties" Incorporates into the WAC provision authority that is currently allowed by statute.
270
280
290
300
310
320 "The rendering of vocational services to a worker who comes under the jurisdiction of the department constitutes acceptance of the provisions of Title 51 RCW, the department's rules and policies, and the department's fee schedule." "The rendering of vocational services to a worker who comes under the department's or self-insurer's jurisdiction constitutes acceptance of Title 51 RCW, chapter s296-19A and 296-15 WAC, and compliance with the departments rules and fees." This revision does not change the intent of this section but makes the language more consistent with that found in chapter 296-20 WAC.
330
340
350
360
370
380
390
400
410
420
430
440
450 "The department must receive the written dispute within twenty calendar days of the date of the vocational determination...The department may accept the dispute if it is not received within the twenty-day period..." "The department must receive the written dispute within fifteen calendar days of receipt of notification to the worker or employer...The department may accept the dispute if it is not received within the fifteen-day period..." This change from the proposed language keeps the standard the same for other time-sensitive events that affect industrial insurance claims. The determining factor is when a decision is communicated to a worker.
460
470
480 Effective dates are September 1, 2000 and January 2, 2001 Effective dates are December 1, 2000 and June 1, 2001. Effective dates were changed to reflect the delay in implementation caused by filing a continuance of the CR-102 process, conducting training, and ensuring that all systems would be fully ready for implementation.
296-15-500 "...to the self-insurance section." "...to the self-insurance section. The criteria outlined in RCW 51.32.095, WAC 296-19A-010 and department guidelines must be followed to determine employability." This change links the sections that were move to chapter 296-15 WAC to changes that were made to the definition of employable in chapter 296-19A WAC, reflecting the Leeper decision.

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 49, Amended 0, Repealed 12.

Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 49, Amended 0, Repealed 12.

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 0, Repealed 0. Effective Date of Rule: On December 1, 2000, for WAC 296-19A-210, 296-15-500 and 296-15-510; and on June 1, 2001, for all other sections.

September 1, 2000

Gary Moore

Director

OTS-3889.6

Chapter 296-19A WAC

VOCATIONAL REHABILITATION

DEFINITIONS
NEW SECTION
WAC 296-19A-010
Definitions.

(1) What does it mean to say an injured worker is employable?

(a) "Employable" means having the skills and training that are commonly and currently necessary in the labor market to be capable of performing and obtaining gainful employment on a reasonably continuous basis when considering the worker's:

(i) Age, education, and experience;

(ii) Preexisting physical and mental limitations; and

(iii) Physical and mental limitations caused, at least in part, by the worker's industrial injury or occupational disease.

(b) Physical and/or mental conditions that arose after the industrial injury/occupational disease that were not caused or aggravated by the industrial injury/occupational disease are not considered in determining whether the worker is employable under the Industrial Insurance Act.

(c) If there are no physical or mental limitations caused by the worker's industrial injury/occupational disease, the worker must be found employable under the Industrial Insurance Act.

(2) What are vocational rehabilitation services? Vocational rehabilitation services are those provided by a vocational rehabilitation provider and include, but are not limited to, the following:

(a) Gathering industrially injured or ill workers' work and/or education histories and physical capacities information;

(b) Assessing industrially injured or ill workers' employability;

(c) Developing, documenting, and writing vocational rehabilitation plans;

(d) Monitoring injured workers' progress during training;

(e) Writing progress reports;

(f) Analyzing and documenting the transferable skills of the injured worker and writing transferable skills analyses;

(g) Performing occupational research;

(h) Conducting labor market surveys and writing labor market survey reports;

(i) Conducting and writing job analyses;

(j) Communicating with industrially injured or ill workers, employers, physicians and others;

(k) Developing job modifications and work site modifications, as well as prejob accommodations, and writing reports for this work; and

(l) All work done to obtain any job with any employer for injured workers referred for vocational rehabilitation services.

(3) What is a vocational rehabilitation provider (provider)? A provider is any person, firm, partnership, corporation, or other legal entity that provides vocational rehabilitation services to industrially injured or ill workers, pursuant to RCW 51.32.095. A provider must meet the qualifications listed in WAC 296-19A-210.

(4) What is an injured worker's labor market? Generally, the worker's relevant labor market is the geographic area where the worker was last gainfully employed. The labor market must be within a reasonable commuting distance and be consistent with the industrially injured or ill worker's physical and mental capacities. The exceptions to this rule are listed in the table below:


When a worker: Then the department:
Relocates to a labor market other than at the time of injury and

Returns to work and

Suffers an aggravation of the work-related condition.

Uses the labor market where the industrially injured or ill worker worked at the time of the aggravation. This applies whether the department closed and reopened the claim or whether the claim remained open during the period of aggravation.
Relocates after the industrial injury/illness or aggravation and

Now lives in a labor market with more employment opportunities than where the industrially injured or ill worker worked at the time of injury.

Uses the industrially injured or ill worker's current labor market. For example, an industrially injured or ill worker was injured in Forks but after the injury, moves to

Tacoma. Provider would use Tacoma as the industrially injured or ill worker's labor market.

Relocates to a labor market other than at the time of injury or onset of illness and

The industrial injury or occupational disease was a proximate cause of the move.

Uses the injured or ill worker's current labor market. For example, an industrially injured or ill worker moves to a drier climate due to an accepted asthma condition. Provider would use the labor market in the drier climate.

(5) What is a labor market survey (LMS)? It is a survey of employers in an industrially injured or ill worker's labor market to obtain specific information (such as physical demands and qualifications) related to job possibilities.

(6) What is a job analysis (JA)? It is the gathering, evaluating, and recording of accurate, objective data about the characteristics of a particular job.

(7) What is a transferable skill? Transferable skills are any combination of learned behavior, education, training, work traits, and work-related skills that can be readily applied by the worker. They are skills that are interchangeable among different jobs and workplaces. Nonwork-related talents or skills that are both demonstrated and applicable may also be considered.

(8) What is a transferable skills analysis? It is a systematic study of the transferable skill or skills a worker has to see if that skill set makes him/her employable.

(9) What are job modifications? Job modifications are adjustments or alterations made to the way a job is performed to accommodate the restrictions imposed by an industrial injury or occupational disease. Job modifications are used when an employer-employee relationship exists, and they may include worksite adjustment; job restructuring; and/or tools, equipment or appliances.

(10) What are prejob accommodations? Prejob accommodations are adjustments or alterations made to the way a job is performed to accommodate the restrictions imposed by an industrial injury or occupational disease. Accommodations are used when an industrially injured or ill worker is engaged in a vocational rehabilitation plan or in a job search, and they may include tools, equipment or appliances.

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GENERAL INFORMATION
NEW SECTION
WAC 296-19A-020
When may the department offer vocational rehabilitation services?

The department may, at its sole discretion, authorize vocational rehabilitation services that are necessary and likely to make the worker employable. In exercising its discretion the department considers, but is not limited to:

(1) Whether the worker took advantage of and utilized vocational rehabilitation services offered in this or other claims;

(2) The worker's ability and willingness to participate in and benefit from vocational rehabilitation services; and

(3) The likelihood that the worker will be employable after the vocational rehabilitation services are completed.

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NEW SECTION
WAC 296-19A-030
What are the responsibilities of the parties?

All parties will have the following responsibilities in assisting the injured worker to become employable at gainful employment:

(1) The attending physician shall maintain open communication with the industrially injured or ill worker's assigned vocational rehabilitation counselor and the referral source. The attending physician shall respond to any requests for information in a timely fashion and will do all that is possible to expedite the vocational rehabilitation process, including making an estimate of the worker's physical or mental capacities that affect the worker's employability.

(2) The claims unit within the department shall:

(a) Notify the employer of the referral to a vocational rehabilitation provider;

(b) Send the employer a copy of the closing report; and

(c) Give written notice to an injured worker if a complaint of noncooperation has been made.

(3) The employer shall assist the vocational rehabilitation counselor in any way necessary to collect data regarding the former gainful employment of the injured worker. Further, the employer will assist the vocational rehabilitation counselor and attending physician to determine whether or not a modified job could be made available for employment of the injured worker.

(4) The injured worker shall cooperate with all reasonable requests from all responsible individuals in determining disability, developing and implementing the rehabilitation process. Should the injured worker fail to be cooperative, the sanctions as set out in RCW 51.32.110 shall be applied.

(5) In assisting the injured worker to become employable at gainful employment, the provider is to follow the priorities as set out in RCW 51.32.095 and the requirements as set out in this chapter.

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NEW SECTION
WAC 296-19A-040
What vocational rehabilitation services require authorization?

All vocational rehabilitation services must be preauthorized. The department may make one or more of the following type of referrals: Early intervention; ability to work assessment ("AWA" or "assessment"); plan development; plan implementation; or forensic services. Each referral is a separate authorization for vocational rehabilitation services.

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DEPARTMENT VOCATIONAL REHABILITATION REFERRALS
NEW SECTION
WAC 296-19A-045
Which rules under "department vocational rehabilitation referrals" apply only to the department?

WAC 296-19A-050 through 296-19A-130 pertain to referrals for vocational rehabilitation services made by the department.

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NEW SECTION
WAC 296-19A-050
What are early intervention services?

Early intervention services are intended to help an industrially injured or ill worker return to work, or continue to work, for the employer of injury or the current employer. These services include, but are not limited to, the following:

(1) Discussing early return to work options with the employer, worker, and attending physician;

(2) Identifying return to work goals and barriers that may interfere with or prevent the industrially injured or ill worker from returning or continuing to work;

(3) Assisting employers with offers of employment;

(4) Planning and working with the referral source on necessary job modifications and prejob accommodations;

(5) Performing job analyses; and

(6) Assessing the industrially injured or ill worker's need for preferred worker status and educating the worker on the preferred worker benefit, if appropriate.

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NEW SECTION
WAC 296-19A-060
What reports does the department require when early intervention services are provided at its request?

(1) Progress reports. The vocational rehabilitation provider must submit a written progress report to the department, and upon request, to the injured worker or the injured worker's representative, every thirty days from the date of the referral summarizing progress during the most recent reporting period. The progress report must include the following:

(a) Summarized results of all contacts the provider had with the industrially injured or ill worker, employer of injury or current employer, and medical provider(s);

(b) Summary of all actions taken including progress on previously recommended actions;

(c) Identification and analysis of any barriers preventing completion of the referral; and

(d) Description of the specific actions the provider intends to take to overcome barriers and the expected time frame to complete those actions.

(2) Closing reports. The provider must always submit an early intervention closing report at the conclusion of services. In the report the provider must include:

(a) A brief description of the industrially injured or ill worker's work history:

(b) Summary of the industrially injured or ill worker's education, training, licenses, and certificates;

(c) A job analysis for the job of injury and any other return to work options;

(d) Description of the worker's medical status and physical capacities;

(e) The date the worker returned to work and the monthly salary or wage, or document attempts to obtain this information;

(f) Indication of which return to work priority relates to the situation;

(g) Documentation that no return to work options exist with the employer of injury or current employer, if applicable;

(h) Any other supporting documentation.

(3) The provider must notify the department orally and in writing within two working days after learning of an unsuccessful return to work by the injured worker.

(4) The provider must notify the department orally and in writing within two working days after learning of a return to work by the injured worker.

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NEW SECTION
WAC 296-19A-070
What is an ability to work assessment?

(1) An AWA is a written report used by the department to determine if an industrially injured or ill worker should receive vocational rehabilitation services. The AWA must include an evaluation of the industrially injured or ill worker's:

(a) Age, education and experience;

(b) Transferable skills;

(c) Preexisting physical and mental conditions and the effect of those conditions on the worker's employability;

(d) Physical and mental conditions proximately caused by the worker's industrial injury or occupational disease and the effect of those conditions on the worker's employability;

(e) Wage at the time of injury;

(f) Work pattern;

(g) Significant barriers to employment;

(h) Labor market; and

(i) Complete work history, in addition to information about education level, courses or transcripts, licenses, certifications or registrations that the worker may have obtained in the past.

(2) The AWA must also include one of the following recommendations:

(a) Able to work: The injured worker is employable at gainful employment. The report must include:

(i) Whether the worker is employable with the employer of injury or current employer, or if not, the job possibility(ies) for which the worker is qualified;

(ii) A job analysis or physical capacities information when a JA is not possible; and

(iii) Labor market information supporting the provider's recommendation when not returning to the employer of injury or current employer;

(b) Further services appropriate: Vocational rehabilitation services are necessary and likely to enable the injured worker to become employable at gainful employment. The report must include:

(i) An analysis demonstrating why the worker is unlikely to return to work without vocational rehabilitation services;

(ii) The specific return to work possibilities investigated and the reasons why they were ruled out; or

(c) Further services not appropriate: The injured worker is not likely to benefit from vocational services. The report must include:

(i) An analysis explaining why vocational rehabilitation services are not appropriate;

(ii) Any barriers that will interfere with the worker's return to work or make it unlikely the worker will benefit from vocational rehabilitation services;

(iii) If appropriate, labor market information supporting the provider's recommendations.

(3) The provider must notify the department in writing within two working days if the worker is medically released to work without restrictions. The provider must attach documentation showing the worker was medically released to work without restrictions. The provider should not perform any other work on the AWA without the prior authorization of the referral source.

(4) The provider must notify the department orally and in writing within two working days if the worker has returned to work. This report must specify and/or document attempts to obtain the following information:

(a) A description of the job the worker returned to;

(b) The name of the employer;

(c) The date that the worker returned to work;

(d) The worker's monthly wages.

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NEW SECTION
WAC 296-19A-080
How often must written progress reports be completed and submitted during assessment activities?

The provider must submit a written progress report to the department, and upon request, to the injured worker or the injured worker's representative, every thirty days from the date of the referral summarizing progress during the most recent reporting period. The written progress report must include:

(1) A detailed explanation why the AWA was not completed as of the date of the report;

(2) A summary of all activities taken in the past thirty days, including progress on previously recommended actions;

(3) Identification and analysis of any barriers preventing completion of the referral; and

(4) A description of the specific actions the provider intends to take to overcome barriers and the expected time frame to complete those actions.

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NEW SECTION
WAC 296-19A-090
What are vocational rehabilitation plan development services?

Vocational rehabilitation plan development services are authorized to obtain the vocational rehabilitation provider's assistance in producing a vocational rehabilitation plan for an industrially injured or ill worker. The provider will work with the industrially injured or ill worker in the development of the plan. Covered services include, but are not limited to, the following:

(1) Vocational counseling and occupational exploration;

(2) Identifying job goal, training needs, resources, and expenses;

(3) Coordinating with medical providers to obtain physical capacities and restrictions information and a release to participate in a vocational rehabilitation plan; and

(4) Vocational testing.

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NEW SECTION
WAC 296-19A-100
What reports does the department require when vocational rehabilitation plan development services are provided at its request?

(1) Progress reports. The vocational rehabilitation provider must submit a written progress report to the department, and upon request, to the injured worker or the injured worker's representative, every thirty days from the date of the referral summarizing progress during the most recent reporting period. The progress report must include the following:

(a) Description of the return to work goals explored, accepted or ruled out;

(b) Review of the return to work priorities being addressed;

(c) Summary of all actions taken, including progress on previously recommended actions;

(d) Identification and analysis of any barriers preventing completion of the referral; and

(e) Description of the specific actions the provider intends to take to overcome barriers and the expected time frame to complete those actions.

(2) Vocational rehabilitation plan. The provider must address the return to work priorities listed in RCW 51.32.095(2) in the plan and explain why each preceding priority would not help the industrially injured or ill worker return to work. The vocational plan must also include the following information:

(a) An assessment of the industrially injured or ill worker's skills and abilities considering the industrially injured or ill worker's physical capacities and mental status, aptitudes and transferable skills gained through prior work experience, education, training and avocation;

(b) The services necessary to enable the industrially injured or ill worker to become employable in the labor market;

(c) Labor market survey supportive of the industrially injured or ill worker's employability upon plan completion;

(d) Documentation of the time and costs required for completion of the plan;

(e) A direct comparison of the industrially injured or ill worker's skills, both existing and those to be acquired through the plan, with potential types of employment to demonstrate a likelihood of plan success;

(f) A medically approved job analysis for the proposed retraining job goal;

(g) Any other information that may significantly affect the plan; and

(h) An agreement signed by the provider and industrially injured or ill worker that:

(i) Acknowledges that the provider and the industrially injured or ill worker have reviewed, understand and agree to the vocational rehabilitation plan; and

(ii) Sets forth the provider's and industrially injured or ill worker's responsibilities for the successful implementation and completion of the vocational rehabilitation plan.

The provider must use a form approved by, or substantially similar to a form used by, the department in order to document this agreement.

(3) Closing report. If the provider has to stop plan development before reaching a vocational goal, submit a plan development closing report. The report must include:

(a) A list of the reasons the provider cannot proceed with vocational rehabilitation plan development activities; and

(b) Supporting documentation, such as: Goals researched, job analyses developed, and/or labor market research conducted.

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NEW SECTION
WAC 296-19A-110
What are vocational rehabilitation plan implementation and monitoring services?

Vocational rehabilitation plan implementation and monitoring services are those services a vocational rehabilitation provider provides to assist an industrially injured or ill worker to successfully complete a vocational rehabilitation plan. These services may include, but are not limited to, the following:

(1) Maintain sufficient contact with the industrially injured or ill worker, trainer and medical providers to make sure the worker is successfully progressing in the vocational rehabilitation plan;

(2) Confirm that the industrially injured or ill worker has received all necessary equipment and supplies;

(3) Contact the industrially injured or ill worker and trainer at least every thirty days to identify potential problems;

(4) Notify the department if the plan needs to be interrupted;

(5) Notify the department when the industrially injured or ill worker completes the plan;

(6) Monitor the industrially injured or ill worker's progress and resolve any problems that might arise;

(7) Document the industrially injured or ill worker's acquisition of skills; and

(8) Notify the department if the plan needs to be terminated.

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NEW SECTION
WAC 296-19A-120
What reports does the department require when vocational rehabilitation plan implementation and monitoring services are provided at its request?

(1) Progress reports. The vocational rehabilitation provider must submit a written progress report to the department, and upon request, to the injured worker or the injured worker's representative, every thirty days from the date of the referral summarizing progress during the most recent reporting period. The progress report must include the following:

(a) Review of the industrially injured or ill worker's compliance with the vocational rehabilitation plan;

(b) A list of the dates the provider contacted the industrially injured or ill worker and training site;

(c) Description of the skills the worker has acquired so far and a comparison with the vocational rehabilitation plan;

(d) Summary of all actions taken in the past thirty days, including progress on previously recommended actions;

(e) Identification and analysis of any barriers preventing completion of the referral;

(f) Statement of whether the industrially injured or ill worker will complete the plan by the target plan end date.

(2) Closing report. If the industrially injured or ill worker successfully completes the vocational rehabilitation plan, the closing report, at a minimum, must contain the following information:

(a) An assessment of the industrially injured or ill worker's employability status at the time of closure;

(b) An assessment of the skills acquired by the industrially injured or ill worker as compared to the vocational rehabilitation plan;

(c) A statement as to whether or not the industrially injured or ill worker has returned to gainful employment; and

(d) The barriers, if any, to the industrially injured or ill worker's return to gainful employment.

(3) If the industrially injured or ill worker does not successfully complete the vocational rehabilitation plan, the closing report, at a minimum, must contain the following information:

(a) Explain why the vocational rehabilitation plan cannot be completed;

(b) Assess the industrially injured or ill worker's employability status at the time the plan stopped;

(c) Assess what skills the industrially injured or ill worker acquired and compare them to the vocational rehabilitation plan;

(d) Indicate whether or not the industrially injured or ill worker has returned to work. If so, list the job title, employer, and monthly salary; and

(e) Describe any remaining barriers that may keep the industrially injured or ill worker from returning to work.

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NEW SECTION
WAC 296-19A-130
What are the requirements for a forensic evaluation?

Vocational forensic services are authorized to obtain the vocational rehabilitation provider's assistance in reviewing the claim file and making recommendations to resolve vocational issues. Except when necessary to make a determination regarding whether a deceased worker was totally and permanently disabled at the time of death, the department will only authorize a forensic evaluation when previous vocational referrals have not resolved an injured worker's vocational issues.

(1) The recommendations may include, but are not limited to:

(a) Vocational rehabilitation services are not appropriate. The vocational rehabilitation provider will provide the rationale for the recommendation.

(b) Vocational rehabilitation services are appropriate. The vocational rehabilitation provider will provide specific suggestions for the type of vocational rehabilitation services recommended.

(c) Able to work.

(d) Further clarification of medical or vocational issues is needed. The vocational rehabilitation provider will identify issues impacting the vocational rehabilitation process and requiring clarification.

(2) Covered services include, but are not limited to:

(a) Reviewing medical and vocational records;

(b) Identifying barriers to employment and possibilities for resolving the barriers;

(c) Coordinating with providers to obtain physical, mental and vocational capacities and restrictions;

(d) Identifying training needs and resources.

Vocational recommendations must follow department guidelines and have supporting documentation attached.

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VOCATIONAL REHABILITATION TOOLS
NEW SECTION
WAC 296-19A-140
What information must a provider include in a labor market survey?

(1) The following information must be included in a labor market survey:

(a) The specific job title surveyed:

(b) If the provider completes a LMS on a referral, include a summary;

(c) Indicate in the summary whether the industrially injured or ill worker has the physical and mental/cognitive capacities to perform the job, based on either the industrially injured or ill worker's attending physician or the preponderance of medical information; and

(d) The LMS must note the name of the surveyor and list all employer contacts, positive and negative, and the dates of contact.

(2) A positive labor market exists if one of the following circumstances is present:

(a) If the provider performs a LMS to assess the industrially injured or ill worker's employability, it is considered positive if the LMS shows enough jobs suitable for that injured worker, consistent with WAC 296-19A-010(1); or

(b) If the provider performs a LMS for a vocational rehabilitation plan, it is considered positive if the LMS shows the proposed job goal, and jobs suitable for that injured worker, consistent with WAC 296-19A-010(1), exist in sufficient numbers to reasonably conclude that the worker will be employable at successful plan completion.

(3) The labor market survey report must include, or document attempts to obtain:

(a) The specific job title surveyed;

(b) All specific employer contacts, including their firm names, phone numbers, contact name and job title;

(c) Physical and mental/cognitive demands of the job in relation to the industrially injured or ill worker's physical and mental/cognitive capacities;

(d) Minimum hiring requirements and the skills and training commonly and currently necessary to be gainfully employed in the job;

(e) Work patterns;

(f) Number of positions per job title;

(g) Wage;

(h) Date of last hire;

(i) Number of current openings; and

(j) A summary of the labor market survey results and whether the survey is positive or negative for the recommended occupation or proposed vocational goal.

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NEW SECTION
WAC 296-19A-170
What information must a provider include in a job analysis?

When completing a job analysis, the vocational rehabilitation provider must:

(1) Include identifying information on each page. This information includes the worker's name and claim number, and job title and DOT number;

(2) Note the name of the vocational rehabilitation provider who completed the job analysis, where the provider completed the job analysis and the date of the job analysis. If the analysis is done on-site, include the employer name and employer contact person with phone number;

(3) Describe the essential functions and all other tasks required to perform the job;

(4) List the tools and equipment required to do the job;

(5) Evaluate and describe the competencies required to perform the job;

(6) Evaluate and describe the physical demands and their frequency required to perform the job. This must include demands for sitting, standing, lifting, etc. The vocational rehabilitation provider should pay special attention to any job duties and physical demands that may be affected by the industrially injured or ill worker's condition;

(7) Describe any environmental hazards encountered on the job;

(8) Describe possible modifications to the job for employer job offers or job modifications;

(9) A section for medical approval, signature, and comments; and

(10) The signature of the vocational rehabilitation provider presenting the job analysis for review and date signed.

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JOB MODIFICATION ASSISTANCE
NEW SECTION
WAC 296-19A-180
What job modification assistance benefits are available?

As provided for in section 13, chapter 63, Laws of 1982 (RCW 51.32.250), the supervisor or supervisor's designee in his or her discretion may pay job modification costs. This payment is intended to be a cooperative participation with the employer and funds shall be taken from the appropriate account within the second injury fund.

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NEW SECTION
WAC 296-19A-190
How much is available for job modification assistance?

An amount not to exceed five thousand dollars from the department is available per worker per modification. The employer may add to this amount with its own contribution.

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NEW SECTION
WAC 296-19A-200
How does an employer apply for job modification assistance?

(1) An employer requesting job modification assistance must submit to the department a job modification assistance application.

(2) The job modification assistance application shall include, but not be limited to:

(a) A document supporting the need for job modification;

(b) A description of the job modification; and

(c) An itemized account of each expense to be incurred in the job modification. Job modification assistance applications shall be submitted on a form prescribed by the department.

(3) The supervisor or supervisor's designee shall accept, reject or modify the job modification application within thirty days of receipt. Notification of the supervisor's acceptance, rejection, or modification shall be in writing.

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QUALIFICATIONS
NEW SECTION
WAC 296-19A-210
What are the qualifications to provide vocational rehabilitation services to industrially injured or ill workers?

Provider community commentary, expert opinion and best practices suggest that there is a correlation between a higher quality level of vocational rehabilitation services and higher qualifications of vocational rehabilitation providers. To ensure the provision of the highest possible quality of vocational rehabilitation services, the department shall only issue a provider number to persons, firms, partnerships, corporations, and other legal entities that meet the following qualification requirements:

(1) Vocational rehabilitation counselor (VRC).

(a) VRCs not registered with the department and applying for a provider number with the department effective on or after December 1, 2000, must meet the following minimum qualifications:


Education

Masters Degree

Experience

1 year full-time industrial insurance experience

Certification

and CRC or CDMS or ABVE

OR
Bachelors Degree 2 years full-time industrial insurance experience and CRC or CDMS
CRC = Certified Rehabilitation Counselor
CDMS = Certified Disability Management Specialist
ABVE = American Board of Vocational Experts

(b) VRCs registered with the department prior to December 1, 2000, will be required to apply for a provider number and will be given six years from December 1, 2000, to meet the above requirements.

(2) VRC supervisor.

(a) In order to supervise interns providing vocational rehabilitation services to industrially injured or ill workers beginning on or after December 1, 2000, the VRC/supervisor must provide proof of five years full-time experience working with Washington state injured workers.

(b) Supervisors registered with the department prior to December 1, 2000, will be required to apply for a provider number and will be given six years from December 1, 2000, to meet all VRC/supervisor requirements.

(c) The VRC supervisor is responsible for ensuring that all work performed by an intern for the department or self-insurer conforms with Title 51 RCW, department rules and department policies.

(3) Forensic services -- In order to provide forensic services to the department on claims other than those for which the VRC provided the vocational rehabilitation services, a VRC must provide proof of three years full-time experience working with Washington state industrially injured or ill workers, and must possess a CRC or ABVE certification.

(4) Intern.

(a) Interns not registered with the department and applying for a provider number with the department on or after December 1, 2000, must meet the following minimum qualifications:


Degree Internship Length
Masters Degree in field acceptable to CRC or CDMS or ABVE Equal to required experience to obtain CRC or CDMS or ABVE certification including at least 1 year working with industrially injured or ill workers.
OR
Bachelors Degree in field acceptable by CDMS Equal to required experience to obtain CDMS certification including at least 2 years working with industrially injured or ill workers.

(b) Interns not registered with the department and applying for a provider number with the department on or after December 1, 2000, must obtain one of the required VRC certifications within one year of completing their required internship.

(c) Interns registered with the department prior to December 1, 2000, will be required to apply for a provider number with the department and may work as an intern until the end of their current internship. Upon completion of the internship the intern may submit an application to the department as a VRC. These providers must obtain one of the required VRC certifications by November 30, 2006.

(d) All interns are required to conform to Title 51 RCW, department rules, and department policies. All interns granted a provider number by the department must be supervised by a VRC supervisor.

(5) Providers registered with the department prior to December 1, 2000, who do not meet the above qualification requirements within the six-year period will no longer be eligible to provide vocational rehabilitation services to industrially injured or ill workers and the department will terminate their provider number(s).

(6) Business requirements.

(a) Providers must comply with all federal and state laws, regulations and other requirements with regard to business operations. In order to be eligible to receive referrals from the department, providers must satisfy the requirements set forth in this subsection in every service location in which they wish to operate.

(b) Providers must be covered by general liability insurance, automobile liability insurance, errors and omission insurance, malpractice insurance, and industrial insurance if required by Title 51 RCW.

(c) Providers must have services and facilities that provide injured workers a private and professionally suitable location in which to discuss vocational rehabilitation services issues. In order to be eligible to receive referrals from the department, providers must satisfy the requirements set forth in this subsection in every service location in which they wish to operate.

(d) Providers must have telephone-answering capability during regular business hours, Monday through Friday. In order to be eligible to receive referrals from the department, providers must satisfy the requirements set forth in this subsection in every service location in which they wish to operate.

(e) In order to receive referrals made by the department, providers must maintain or have access to equipment that can utilize the department's remote access system for transmitting vocational referrals.

(7) The department may assign a provider number to a vocational rehabilitation firm, partnership, corporation or other legal entity so long as substantial control over the daily management of the vocational rehabilitation firm, partnership, corporation or other legal entity is performed by a VRC that satisfies the qualifications set forth in this rule.

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NEW SECTION
WAC 296-19A-220
Can a vocational rehabilitation provider deliver vocational rehabilitation services pursuant to RCW 51.32.095 without receiving a provider number from the department?

No. The department may only issue provider numbers to persons, firms, partnerships, corporations and other legal entities that satisfy the qualification requirements in WAC 296-19A-210.

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AUDITING AND OVERSIGHT
NEW SECTION
WAC 296-19A-230
Why does the department audit vocational rehabilitation providers?

The department audits providers to:

(1) Ensure that the provider is providing services conforming to accepted standards of service;

(2) Ensure compliance with the Revised Code of Washington, the Washington Administrative Code, and department policies governing vocational rehabilitation services.

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NEW SECTION
WAC 296-19A-240
What authority does the department have to audit vocational rehabilitation providers?

(1) The department has the authority to:

(a) Conduct audits of a provider, either for cause or at random;

(b) Conduct audits at a provider's place of business; (c) Conduct audits away from a provider's place of business, using copies of all files and records supplied by the provider;

(d) Require a provider to submit legible copies of all files and records requested for audit;

(e) Inspect and audit all of the provider's vocational rehabilitation files and records relating to services delivered under Title 51 RCW;

(f) Inspect and audit a provider's documentation supporting charges billed for vocational rehabilitation services delivered.

(2) For information regarding the formal appeals process refer to chapter 51.52 RCW.

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NEW SECTION
WAC 296-19A-250
How much notice is the department required to give a vocational rehabilitation provider prior to an audit?

The department will give ten working days' written notification to a provider before starting an audit.

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NEW SECTION
WAC 296-19A-260
What are the possible consequences for a provider that does not comply with the RCWs, WACs, or department policies?

The department may order corrective action(s) when it determines that a provider is not in compliance with department statute, rule, or written department policy. Possible corrective actions include, but are not limited to:

(1) Submission and implementation of a written corrective action by the provider showing how the provider will come into compliance;

(2) Recoupment of payments, plus interest, made to the provider;

(3) Requirement that the provider satisfactorily complete remedial education courses and/or other educational or training programs;

(4) Suspension or termination of the provider's ability to receive payment for vocational rehabilitation services rendered to industrially injured or ill workers under the Industrial Insurance Act;

(5) Rejection of a provider's application to provide vocational rehabilitation services to industrially injured or ill workers under the Industrial Insurance Act;

(6) Denial or rejection of a request for payment submitted by or on behalf of the provider;

(7) Placement of the provider on prepayment review status requiring the submission of supporting documents prior to payment;

(8) Assessment of penalties.

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NEW SECTION
WAC 296-19A-270
In what situation(s) can the department take corrective action(s)?

(1) Reasons the department can order corrective actions against a vocational rehabilitation provider include, but are not limited to, the following:

(a) Commission of an act involving moral turpitude, dishonesty, or corruption relating to the provision of vocational rehabilitation services whether the act constitutes a crime or not;

(b) Misrepresentation or concealment of a material fact in obtaining a department provider number, or in response to any request for information about service delivery made by the department;

(c) Provision of vocational rehabilitation services without having a department provider number;

(d) Use of persons that do not possess a department provider number to deliver vocational rehabilitation services;

(e) Operation of a vocational firm, partnership, corporation, or other legal entity in violation of the business requirements set forth in RCW, WAC, or written department policy;

(f) Use of false, fraudulent, or misleading advertising;

(g) Commission of any incompetent or negligent action which presents the significant risk of resulting in harm to an industrially injured or ill worker, the referral source, or an employer;

(h) Submission of a false or misleading report or document as part of delivering vocational rehabilitation services;

(i) Failure to supervise a vocational rehabilitation intern in accordance with RCW, WAC, or written department policy;

(j) Failure to comply with any order issued by the department;

(k) Disclosure of confidential information on vocational rehabilitation services to a person who is not entitled to it;

(l) Charges an industrially injured or ill worker or employer a fee for delivering vocational rehabilitation services on a referral from the referral source; and

(m) Bills an industrially injured or ill worker or state fund employer for providing services under the Industrial Insurance Act.

(2) The department can take corrective action(s) for other violations of RCW, WAC, or written department policy not specifically mentioned above.

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NEW SECTION
WAC 296-19A-280
What criteria does the department use to evaluate a vocational rehabilitation provider's performance?

The department must make referrals for vocational rehabilitation services based on the vocational rehabilitation provider's performance. The performance measurement factors for vocational rehabilitation providers will include, but not be limited to:

(1) Cost for services delivered;

(2) Length of time taken to provide the services;

(3) The outcome of the vocational rehabilitation services;

(4) Complexity of cases referred; and

(5) Whether the vocational rehabilitation services conformed with department rules and accepted standards of good practice.

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NEW SECTION
WAC 296-19A-290
How does the department incorporate performance measurement into making referrals to providers?

Based on WAC 296-19A-280, the department will generate periodic performance ratings for vocational rehabilitation providers. The performance ratings will be the method used for making referrals from the department to vocational rehabilitation providers based on quality and effectiveness.

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NEW SECTION
WAC 296-19A-300
How does the department evaluate performance when a vocational rehabilitation provider does not have either a performance rating with the department or previous experience delivering services to Washington injured workers?

(1) Several situations exist in which a vocational rehabilitation provider may not have a performance rating with the department or may not have sufficient experience with Washington industrially injured or ill workers covered by the department to establish a performance rating.

(2) Provider community commentary, expert opinion and best practices suggest that there is a correlation between a higher level of vocational rehabilitation services and higher qualifications of vocational rehabilitation providers. Based upon this information, the department concludes that referrals to providers who satisfy these minimum qualification criteria set forth in WAC 296-19A-210 (1)(a) and (2)(a), but who do not have a performance rating with the department, may be appropriate. The department will ensure that these providers are complying with department statutes, rules, and policies and furnishing a high level of service through close and continued monitoring. The department may consider making referrals to vocational rehabilitation providers, on a trial basis, for whom the department does not have performance rating data, under the following circumstances:

(a) The provider fulfills the qualification requirements set forth in WAC 296-19A-210 (1)(a), (2)(a); and

(b) The department may consider making referrals sufficient to develop a reliable performance rating.

(3) If the department elects to refer and monitor a limited number of cases to the provider(s) in order to evaluate a provider's performance and develop performance rating, the department makes no guarantee of future referrals to the provider.

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NEW SECTION
WAC 296-19A-310
Are vocational rehabilitation providers entitled to referrals from the department?

The department or self-insured employer refers industrially injured or ill workers for vocational rehabilitation services at their sole discretion. No provider is entitled to referrals from the referral source.

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NEW SECTION
WAC 296-19A-320
What other requirements are providers required to follow?

By rendering vocational rehabilitation services to industrially injured or ill workers under RCW 51.32.095, the vocational rehabilitation provider agrees to comply with Title 51 RCW, chapters 296-19A and 296-15 WAC, and the department's fee schedule.

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BILLING AND DOCUMENTATION SECTION
NEW SECTION
WAC 296-19A-330
How does a vocational rehabilitation provider receive payment for services?

All providers must apply for and receive a provider number from the department in order to bill the department and get paid for providing vocational rehabilitation services to industrially injured or ill workers. More detailed billing instructions for vocational rehabilitation services are available from the department.

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NEW SECTION
WAC 296-19A-340
For what services will the department not pay?

The following services are considered overhead and the department will not pay for these services:

(1) Administrative and supervisory salaries and related personnel expenses;

(2) Office rent;

(3) Depreciation;

(4) Equipment purchase and rental;

(5) Telephone expenses including long distance phone call charges;

(6) Postage;

(7) Shipping;

(8) Expendable supplies;

(9) Printing costs;

(10) Copier costs;

(11) Printing of fiche and department electronic files;

(12) Maintenance and repair;

(13) Taxes;

(14) Automobile costs and maintenance;

(15) Insurance;

(16) Dues and subscriptions;

(17) Vacation, sick leave, and other expenses of a similar nature;

(18) Internal staffing time;

(19) Filing of material in case files;

(20) Setting up files;

(21) Activities associated with reports other than composing or dictating complete draft of the report (e.g., editing, filing, distribution, revising, typing, and mailing);

(22) Generating and keeping internal recordkeeping forms;

(23) Time spent on any administrative and clerical activity, including typing, copying, mailing, distributing, filing, payroll, recordkeeping, delivering mail, picking up mail;

(24) Activities associated with counselor training, general discussion regarding office procedures, internal case file reviews by supervisors, meetings, and seminars;

(25) Unanswered phone calls; and

(26) Any other item or service not specifically identified and separately billable.

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NEW SECTION
WAC 296-19A-350
What are the requirements for case notes?

Vocational rehabilitation providers must maintain case notes. Case notes must:

(1) Include the first and last name of the industrially injured or ill worker being served and the worker's claim number at the top of each page;

(2) Include the first and last name of the vocational rehabilitation provider providing each service documented on each page;

(3) Be kept in a claimant file corresponding to the reports, medical information, correspondence, and other materials that they provide documentation for;

(4) Testing and other records with special confidentiality requirements may be kept in separate files;

(5) Be legible;

(6) Be in chronological order;

(7) Record the date each service was provided month month/day day/year year;

(8) Include the amount of time, recorded in tenths of an hour, required to provide each service;

(9) Describe each service sufficiently to allow the referral source to verify the purpose, level, type, and outcome of each service provided and substantiate the charges billed for them.

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NEW SECTION
WAC 296-19A-360
What are the requirements for bills submitted to the department?

(1) Any bill a provider submits to the department must include the following information:

(a) Worker's name;

(b) Worker's claim number;

(c) Vocational referral number;

(d) Dates of service;

(e) Place of service;

(f) Type of service;

(g) Appropriate procedure code(s);

(h) Charge;

(i) Units of service;

(j) Total bill charge;

(k) The name and the department-assigned provider ID of the counselor or intern rendering the services;

(l) Provider number of the payee;

(m) Date of billing;

(n) Submission of any supporting documentation required under other sections of this chapter.

(2) Itemize the bills on department approved forms. A vocational rehabilitation provider may transmit the bills electronically if the provider uses department file format specifications. If the provider uses any of the electronic transfer options, the provider must follow department instructions for electronic billing.

(3) The provider must bill using procedure codes, fees, and methods provided by the department. The department will publish codes, fees, and procedures and provide this information to all vocational rehabilitation providers receiving department referrals. The department will establish fees at regular intervals.

(4) Document all billed charges and justify the type, level and extent of services in the case notes. A provider's billed charges must be consistent with the services provided. The department may reduce, deny, or recoup payment whenever case notes fail to document billed charges or services provided.

(5) It is the vocational rehabilitation provider's responsibility to make sure the charges billed are complete and accurate, even if a third party is actually performing the billing.

(6) The vocational rehabilitation provider is encouraged to bill every two weeks. The department must receive bills within one year of the date of service to be eligible for payment.

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NEW SECTION
WAC 296-19A-370
What are the procedures for adjustments to provider bills?

(1) The department or self-insurer may adjust payment of charges when appropriate. The department or self-insurer must provide a written explanation of why they adjusted a billing or line item of a bill when they make any adjustment. In cases where the department is the referral source, it will not give the provider a written explanation if the department made the adjustment solely to conform to its maximum allowable fees.

(2) The department or self-insurer must receive any inquiries about a bill adjustment within ninety days from the date of payment to be considered. All provider inquiries must be in the required format.

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NEW SECTION
WAC 296-19A-380
What are the procedures for rebilling?

(1) If a provider does not receive payment or notification from the department within one hundred twenty days, he or she may rebill for services.

(2) Rebills should be identical to the original bill: Same charges, codes, and billing date.

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NEW SECTION
WAC 296-19A-390
What are the procedures for repayment of excess payment of charges?

(1) When a vocational rehabilitation provider receives a payment to which that provider is not entitled, the provider must repay the excess amount, plus accrued interest, without regard to whether the excess payment occurred due to provider or department error or oversight.

(2) Interest accrues on excess payments at the rate of one percent per month or portion of a month beginning on the thirty-first day after payment was made. Where partial repayment on an excess payment is made, interest accrues on the remaining balance.

(3) The department reserves the option of either requesting the provider to remit the amount of excess payment and accrued interest to the department or offsetting excess payments and accrued interest against future payments due the provider.

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NEW SECTION
WAC 296-19A-400
What records are vocational rehabilitation providers required to maintain?

(1) A vocational rehabilitation provider must maintain adequate documentation in claimant-specific files to verify the level, type, and extent of the vocational rehabilitation services provided to and on behalf of industrially injured or ill workers.

(2) A vocational rehabilitation provider who requests payment from the referral source for vocational rehabilitation services must maintain all records necessary for the director's authorized auditors to audit the provision of services. Providers need to keep all records necessary to disclose the specific nature and extent of all services provided for an industrially injured or ill worker, along with the amounts billed to the department, for those services. Records must be maintained for audit purposes for a minimum of five years.

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NEW SECTION
WAC 296-19A-410
What is the purpose of the department's vocational dispute process?

The purpose is to avoid delays in vocational rehabilitation services by resolving disputes between industrially injured or ill workers, employers and the referral source.

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NEW SECTION
WAC 296-19A-420
Who can dispute a vocational determination?

The following parties are authorized to dispute a vocational determination made by the referral source:

(1) An industrially injured or ill worker;

(2) An employer; or

(3) The representative of an industrially injured or ill worker or employer.

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NEW SECTION
WAC 296-19A-430
Can a vocational rehabilitation provider dispute a vocational determination?

A vocational rehabilitation provider cannot dispute a vocational determination.

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NEW SECTION
WAC 296-19A-440
What elements of a vocational determination may be disputed?

A finding that an industrially injured or ill worker is eligible for vocational rehabilitation services, or a finding that he or she is ineligible for vocational rehabilitation services, may be disputed. An approved vocational rehabilitation plan may also be disputed.

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NEW SECTION
WAC 296-19A-450
What are the time frames for filing a dispute of a vocational determination with the department?

The department must receive the written dispute within fifteen calendar days of receipt of notification to the worker or employer. The dispute must explain the reason(s) for the disagreement with the determination. The department may accept the dispute if it is not received within the fifteen-day period if there is a demonstrated good cause for the delay.

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NEW SECTION
WAC 296-19A-460
What part of the department is charged with reviewing vocational disputes?

The vocational dispute resolution office (VDRO) consultant reviews disputes of vocational determinations and makes a recommendation to the director, who makes a final decision. Disputes should be sent to the director, in care of the VDRO.

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NEW SECTION
WAC 296-19A-470
What is the process for review of a vocational dispute?

VDRO will review the written dispute and issue an acceptance letter, which will be sent to all parties. If the department does not accept your dispute, the letter will explain the reason(s) for the rejection. A copy of this letter, along with the written dispute, will be sent to all involved parties.

The director, at his or her sole discretion, will initiate a review of an accepted dispute to determine further action. If necessary, and at the discretion of the director, VDRO staff will contact the parties to attempt to resolve the dispute.

If the dispute is not resolved, the director in his or her sole discretion will take other action that he or she considers appropriate to protect the rights of the parties. The director will promptly inform all parties, in writing, of what action is taken.

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EFFECTIVE DATES
NEW SECTION
WAC 296-19A-480
When must providers comply with these rules?

(1) The following section of chapter 296-19A WAC becomes effective on December 1, 2000:


WAC 296-19A-210 What are the qualifications to provide vocational rehabilitation services to industrially injured or ill workers?

(2) The following sections of chapter 296-15 WAC become effective on December 1, 2000:


(a) WAC 296-15-500 What vocational rehabilitation reports are required for self-insured employers?
(b) WAC 296-15-510 What is the process used for vocational rehabilitation with regard to self-insured employers?

(3) All remaining sections of chapter 296-19A WAC become effective on June 1, 2001.

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OTS-3887.4


NEW SECTION
WAC 296-15-500
What vocational rehabilitation reports are required for self-insured employers?

The following reports are required from the self-insurer to be sent to the self-insurance section. The criteria outlined in RCW 51.32.095, WAC 296-19A-010 and department guidelines must be followed to determine employability.

(1) Self-insured rehabilitation referral. A form submitted no later than after paying ninety continuous days of time loss after the initial filing or reopening of a claim. If more time is necessary, an extension may be requested on this form. The format for this form will be supplied by the department.

(2) Employability assessment report. If a vocational referral is not being made and an extension of time is not necessary, this form must be completed and submitted to the self-insured section no later than after paying ninety continuous days of time loss after the initial filing or reopening of a claim. The format for this form will be supplied by the department.

(3) A vocational rehabilitation plan shall be submitted to the self-insurance section by the self-insurer no later than ten calendar days after being signed by the injured worker, vocational rehabilitation provider and the employer. The plan will follow the criteria below:

(a) A vocational rehabilitation plan shall be approved by the referral source prior to its implementation. After the plan has been approved by the referral source, injured worker and vocational rehabilitation counselor, a copy of it shall be sent to all individuals with responsibilities under it. The plan shall contain the following:

(i) Assessment of the skills and abilities, based on the physical capacities and mental status, aptitudes, and transferable skills of the injured worker;

(ii) The services necessary to enable the injured worker to become employable at gainful employment;

(iii) Labor market information indicating the employability of the injured worker at plan completion;

(iv) An estimate of the cost and the time necessary for the completion of the plan;

(v) A direct comparison of the injured worker's skills with potential types of employment to demonstrate a likelihood of success;

(vi) If necessary, a job analysis of the injured worker's previous occupation, including earnings, may be included; and

(vii) Any other information that will significantly affect the plan.

(b) The following priorities shall be addressed and justification given to why each preceding priority was not used:

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

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

(iii) A new job with the same employer in keeping with any limitations or restrictions;

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

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

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

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

A new job with a new employer or self-employment involving on-the-job training; and

(vii) Short-term retraining and job placement.

(c) Each plan shall be signed by the vocational rehabilitation counselor and the injured worker. The following statement shall be printed above the signatures:


I have read the above plan and understand its contents. By signing this plan I agree to faithfully execute my responsibilities described in it.


(4) Closing report. Upon completion of a formal program, the self-insurer will submit the closing report to the department. The closing report shall contain at least the following:

(a) Assessment of the injured worker's employability status at the time of completion of vocational services;

(b) Whether or not the injured worker has returned to work;

(c) Any remaining barriers to the injured worker becoming employable at gainful employment; and

(d) An ability to work summary may be substituted for a closing report.

(5) Rehabilitation outcome report. This form is to be submitted with the final self-insurer's report on occupational injury or disease (SIF-5) or, in the case of medical only claims, with the self-insurers accident report (SIF-2), which is submitted at the time of claim closure. The format for this form will be supplied by the department and applies to all claims where vocational rehabilitation services have been provided.

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NEW SECTION
WAC 296-15-510
What is the process used for vocational rehabilitation with regard to self-insured employers?

(1) No later than paying ninety continuous days of time loss following the initial filing or reopening of a claim, the self-insurer shall notify the self-insurance section as to whether or not vocational rehabilitation services are necessary and likely to enable the injured worker to become employable at gainful employment. Each of these cases will be reviewed by the self-insurance section. The criteria outlined in RCW 51.32.095, WAC 296-19A-010 and department guidelines must be followed to determine employability. If the injured worker is determined employable, the self-insurer will submit an employability assessment form which contains objective reasons why the injured worker is employable. Within twenty calendar days of receipt of an employability assessment form, the supervisor's designee within the self-insurance section will inform the self-insurer and the injured worker as to whether or not self-insurers determination of employability is approved. If an employability determination cannot be made due to medical instability, the self-insured shall request an extension by notifying the self-insurance section of the injured worker's condition and when a determination can be made. If the request for extension is not approved, notice will be sent within fifteen calendar days of receipt.

(2) The supervisor's designee within the self-insurance section of the department will receive from the self-insurer the vocational rehabilitation plan signed by the injured worker and employer. Within ten calendar days of receipt of the vocational plan, the supervisor's designee will inform the self-insurer, the vocational rehabilitation counselor and the injured worker that the plan has been received. A review of the vocational rehabilitation plan by the supervisor's designee will be initiated upon request by the employer or the injured worker. Reasons for the review must be stated in writing. A request for a plan review must be made prior to completion or termination of the plan. If necessary, conflict resolution techniques, such as conferences and fact-finding, will be used in order to resolve problems with the plan in as fair and expedient manner as possible. The supervisor's designee shall notify the parties of the plan review results no later than sixty days from the date the request was received.

Disputes of the supervisor's designee's determination must be submitted to the director in accordance with WAC 296-19A-410 to 296-19A-470.

(3) Upon completion of the formal program, the self-insurer will submit to the self-insurance section a closing report. Within ten calendar days of receipt of the closing report, the supervisor's designee shall inform the injured worker and employer that vocational services have concluded.

(4) The self-insurer shall provide the self-insurance section with a rehabilitation outcome report on a form prescribed by the department. The rehabilitation outcome report shall be attached to the final self-insurer's report on occupational injury or disease (SIF-5) or, in the case of medical only claims, with the self-insurers accident report (SIF-2), which is submitted at the time of claim closure. A rehabilitation outcome report will be submitted on all claims where vocational rehabilitation services have been provided.

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OTS-3975.1


REPEALER

     The following sections of the Washington Administrative Code are repealed:
WAC 296-18A-445 Self-insured reports.
WAC 296-18A-500 Self-insurers.
WAC 296-18A-510 Vocational rehabilitation counselor qualifications.

OTS-3888.2


REPEALER

     The following sections of the Washington Administrative Code are repealed:
WAC 296-18A-420 Definitions.
WAC 296-18A-440 Reports.
WAC 296-18A-450 Vocational rehabilitation plan.
WAC 296-18A-460 Audits.
WAC 296-18A-470 Disputes.
WAC 296-18A-480 Responsibilities.
WAC 296-18A-490 Billing for vocational services.
WAC 296-18A-515 Period of registration.
WAC 296-18A-520 Job modification assistance.

Washington State Code Reviser's Office