WSR 09-18-100

PROPOSED RULES

DEPARTMENT OF

LABOR AND INDUSTRIES

[ Filed September 1, 2009, 2:14 p.m. ]

     Original Notice.

     Preproposal statement of inquiry was filed as WSR 08-09-117.

     Title of Rule and Other Identifying Information: Chapter 296-19A WAC, Option 2 benefits.

     Hearing Location(s): Department of Labor and Industries, Tukwila Office Training Room, 12806 Gateway Drive, Tukwila, WA 98168-3311, on October 6, 2009, at 1:00 p.m.

     Date of Intended Adoption: December 1, 2009.

     Submit Written Comments to: Nancy James, P.O. Box 44208, Olympia, WA 98504-4208, e-mail jamn235@lni.wa.gove [jamn235@lni.wa.gov], fax (360) 902-4960, by October 20, 2009.

     Assistance for Persons with Disabilities: Contact Nancy James by September 22, 2009, TTY (360) 902-5787 or (360) 902-5005.

     Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: The proposed rules are necessary for the implementation of chapter 72, Laws of 2007 (ESSB 5920).


WAC 296-19A-600 How does an eligible injured worker elect vocational Option 2 benefits?

• Explains when the worker must choose Option 2 benefits if electing Option 2 benefits.
• Explains that the worker's claim will be closed when electing Option 2 benefits and the worker will receive the Option 2 award and access to Option 2 training funds.

WAC 296-19A-610 What is a vocational Option 2 award?

• Explains how the Option 2 award is calculated.
• Explains the method of payment of the Option 2 award to the worker.
• Clarifies adjustments and deductions that can and cannot be made.

WAC 296-19A-620 What are the vocational Option 2 training funds?

• Explains when training funds are available to the worker and for what period.
• Clarifies what training programs Option 2 funds can be used.
• Explains basis for annual adjustment for available training funds.
• Explains that workers are notified by department order of training funds available and how they can access their current balance.

WAC 296-19A-630 Can a worker change their option election?

• Explains time frame for changing election options.

WAC 296-19A-640 What costs cannot be paid from the vocational Option 2 training funds:

• Specifies what costs training funds cannot be used for.

WAC 296-19A-650 Is the vocational Option 2 award paid if the worker is confined in an institution and under sentence?

• Explains that the worker will not receive the option 2 award while incarcerated under sentence and when the department or self-insured employer will resume payment.

WAC 296-19A-660 Can a worker use the Option 2 training funds if confined in an institution and under sentence?

• Explains that Option 2 training funds are available while a worker is incarcerated under sentence upon application to the department of self-insurer.

WAC 296-19A-670 If a worker dies while receiving the vocational Option 2 award, will the award be paid to the worker's beneficiaries?

• Explains that the award is not payable to the worker's beneficiaries or estate.

     Reasons Supporting Proposal: This proposed rule making will include new rules to clarify the process and requirements for making application for Option 2 vocational benefits, and define which vocational costs require department or self-insurer approval and the vocational costs that can and cannot be paid.

     Statutory Authority for Adoption: RCW 51.04.020, 51.04.030, 51.32.095, 51.32.099 and 51.32.0991 (chapter 72, Laws of 2007, ESSB 5920).

     Statute Being Implemented: RCW 51.32.095, 51.32.099 and 51.32.0991 (chapter 72, Laws of 2007, ESSB 5920).

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

     Name of Proponent: Department of labor and industries, governmental.

     Name of Agency Personnel Responsible for Drafting: Brenda Heilman, Tumwater, (360) 902-6313, Implementation: Cheri Ward (state fund) and AnnaLisa Gellerman (self-insurance), Tumwater, (360) 902-6313; and Enforcement: Robert Malooly, Tumwater, (360) 902-4209.

     No small business economic impact statement has been prepared under chapter 19.85 RCW. This rule making is exempt under RCW 19.85.025(3), referring to RCW 34.05.310(4), namely RCW 34.05.310 (4)(c) because the rule making adopts and incorporates without material change ESSB 5920, chapter 72, Laws of 2007.

     A cost-benefit analysis is not required under RCW 34.05.328. This rule making is exempt under RCW 34.05.328 (5)(b)(iii) because it adopts and incorporates without material change ESSB 5920, chapter 72, Laws of 2007.

September 1, 2009

Judy Schurke

Director

OTS-2635.2

OPTION 2 BENEFITS
NEW SECTION
WAC 296-19A-600   How does an eligible injured worker elect vocational Option 2 benefits?   Within fifteen days of the approval of a retraining plan by the department, the worker submits to the department or self-insurer the Retraining Plan Option Form indicating they select Option 2 and choose not to participate in their retraining plan. This election means the worker's compensation claim will be closed, and the worker will receive the vocational Option 2 award and access to the Option 2 training funds.

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NEW SECTION
WAC 296-19A-610   What is a vocational Option 2 award?   This award is equivalent to the total of six months of temporary total disability compensation based on the amount in effect the date the Option 2 benefit is granted. The award will be paid to the worker in biweekly payments according to their schedule of temporary total disability payments until the award is paid in full. The temporary total disability amount used will not include any adjustments for the worker's receipt of Social Security benefits. Any overpayments the worker owes to the department or to a self-insurer will be deducted from the vocational award.

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NEW SECTION
WAC 296-19A-620   What are the vocational Option 2 training funds?   These training funds are available to the worker, upon application to the department or self-insurer, for a period of five years following the department's order confirming the worker's Option 2 election. The funds can be used to participate in any training through an accredited, licensed, or department-approved training program or institution.

     The amount of training funds available is adjusted effective July 1st of each year, based on the average percentage change in tuition for the next fall quarter for all Washington state community colleges. Eligible workers are notified of the amount available to them by department order issued at the time of their Option 2 election. They can also view the current balance of funds through the department's on-line claim and account center.

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NEW SECTION
WAC 296-19A-630   Can a worker change their option election?   Changes to the election decision cannot be made beyond fifteen days of the date the department approves the worker's retraining plan.

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NEW SECTION
WAC 296-19A-640   What costs cannot be paid from the vocational Option 2 training funds?   Training funds cannot be used for the costs of ergonomic equipment, prejob accommodations, job modifications, on-the-job training, self-employment, lodging or transportation.

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NEW SECTION
WAC 296-19A-650   Is the vocational Option 2 award paid if the worker is confined in an institution and under sentence?   No. The department or self-insured employer will pay the balance of the Option 2 award when notified, in writing, the worker is no longer confined and under sentence.

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NEW SECTION
WAC 296-19A-660   Can a worker use the Option 2 training funds if confined in an institution and under sentence?   Yes. These training funds are available to the worker, upon application to the department or self-insurer.

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NEW SECTION
WAC 296-19A-670   If a worker dies while receiving the vocational Option 2 award, will the award be paid to the workers' beneficiaries?   No. This award is not payable to the worker's beneficiaries or estate.

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