Effective Date of Rule: Immediately.

     Purpose: The department is extending the emergency rule filed as WSR 10-10-112 amending sections of chapter 388-448 WAC repealing changes to disability lifeline incapacity criteria, including how the department uses social and vocational factors to determine eligibility filed as WSR 10-08-036. These amendments will repeal changes to the disability lifeline incapacity criteria [and] are required in order for the department to comply with ESSB 6444 as passed by the legislature April 12, 2010. As passed, the bill limits the department's ability to make any changes to the incapacity determination and progressive evaluations process regulations until at least September 30, 2010, except for provisions related to the use of administrative review teams may be amended, and obsolete terminology and functional assessment language may be updated.

     Citation of Existing Rules Affected by this Order: Amending WAC 388-448-0050, 388-448-0080, 388-448-0090, 388-448-0100, and 388-448-0110.

     Statutory Authority for Adoption: RCW 74.04.050, 74.04.055, 74.04.057, 74.08.090, and 74.04.005.

     Under RCW 34.05.350 the agency for good cause finds that immediate adoption, amendment, or repeal of a rule is necessary for the preservation of the public health, safety, or general welfare, and that observing the time requirements of notice and opportunity to comment upon adoption of a permanent rule would be contrary to the public interest; and that in order to implement the requirements or reductions in appropriations enacted in any budget for fiscal years 2009, 2010, or 2011, which necessitates the need for the immediate adoption, amendment, or repeal of a rule, and that observing the time requirements of notice and opportunity to comment upon adoption of a permanent rule would be contrary to the fiscal needs or requirements of the agency.

     Reasons for this Finding: The bill limits the department's ability to make any changes to the incapacity determination and progressive evaluations process regulations until at least September 30, 2010, except for provisions related to the use of administrative review teams may be amended, and obsolete terminology and functional assessment language may be updated. This filing continues the emergency rule filed as WSR 10-10-112 while the department continues the permanent rule-making process. The department has filed a preproposal statement of inquiry (WSR 10-09-074) and a proposed rule-making notice (WSR 10-13-158). The permanent rule-filing process is anticipated to be completed in September 2010.

     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 5, 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 0, Amended 0, Repealed 0.

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

     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 5, Repealed 0.

     Date Adopted: July 28, 2010.

Katherine I. Vasquez

Rules Coordinator

     (1) We review the following psychological evidence to determine the severity of your mental impairment:

     (a) Psychosocial and treatment history records;

     (b) Clinical findings of specific abnormalities of behavior, mood, thought, orientation, or perception;

     (c) Results of psychological tests; and

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

     (2) We exclude diagnosis and related symptoms of alcohol or substance abuse or addiction;

     (3) ((We exclude disorders that don't impair thought, mood, memory, or cognition, such as:

     (a) Passive behaviors.

     (b) Learning deficits.

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

Intelligence Quotient (IQ) Score	Severity Rating
((76)) 85 or above	((None ())1(()))
((65)) 71 to ((75)) 84	((Moderate ())3(()))
((64)) 70 or lower	((Severe ())5(()))

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

     (a) Short term memory impairment;

     (b) Perceptual or thinking disturbances;

     (c) Disorientation to time and place; or

     (d) Labile, shallow, or coarse affect.

     (((6))) (5) We base the severity of ((an impairment diagnosed as a mood, thought, memory, or cognitive)) a functional disorder on a clinical assessment of the intensity and frequency of symptoms that:

     (a) Affect your ability to perform basic work related activities; and

     (b) Are consistent with a diagnosis of a mental impairment as listed in the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV).

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

Symptom Ratings or Condition	Severity Rating
(a) ((You are diagnosed with a)) The functional ((disorder)) mental impairment is diagnosed with psychotic features; (b) You have had two or more hospitalizations for psychiatric reasons in the past two years; (c) You have had more than six months of continuous psychiatric ((inpatient)) hospital or residential treatment in the past two years; (d) The ((objective evidence and global assessment of functional score are consistent with a significant limitation on performing work activities)) overall assessment of symptoms is rated three; or (e) At least three symptoms are rated three or higher.	((Moderate ())3(()))
(((e))) (f) The ((objective evidence and global assessment of functioning score are consistent with very significant limitations on ability to perform work activities)) overall assessment of symptoms is rated four; or (g) At least three symptoms are rated four or five.	((Marked ())4(()))
(((f))) (h) The ((objective evidence and global assessment of functioning score are consistent with the absence of ability to perform work activities)) overall assessment of symptoms is rated five; or (i) At least three symptoms are rated five.	((Severe ())5(()))

     (((8))) (7) If you are diagnosed with any combination of mental retardation, mental impairment with physical causes, or functional mental impairment, we assign a severity rating as follows:

Condition	Severity Rating
(a) Two or more disorders with ((moderate severity (3))) ratings of three; or (b) One or more disorders rated ((moderate severity (3))) three; and one rated ((marked severity (4))) four.	((Marked ())4(()))
(c) Two or more disorders rated ((marked (4) severity)) four.	((Severe ())5(()))

     (((9))) (8) We deny incapacity when you haven't been diagnosed with a significant physical impairment and your overall mental severity rating is one or two;

     (((10))) (9) We approve incapacity when you have an overall mental severity rating of ((severe ())five(())).

[Statutory Authority: RCW 74.04.050, 74.04.055, 74.04.057, 74.08.090, and 74.04.005. 10-08-036, § 388-448-0050, filed 3/31/10, effective 5/1/10. Statutory Authority: RCW 74.04.050, 74.04.055, 74.04.057, 74.08.090. 09-11-078, § 388-448-0050, filed 5/18/09, effective 6/18/09; 00-16-113, § 388-448-0050, filed 8/2/00, effective 9/1/00.]

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

     (a) Understand, remember, and ((persist in tasks by following)) follow simple, one or two-step instructions ((of one or two steps.));

     (b) Understand, remember, and ((persists in tasks by following)) follow complex instructions ((of)), with three or more steps((.));

     (c) Learn new tasks((.));

     (d) ((Perform routine tasks without undue supervision.

     (e) Be aware of normal hazards and take appropriate precautions.

     (f) Communicate and perform effectively in a work setting with public contact.

     (g) Communicate and perform effectively in a work setting with limited public contact)) Exercise judgment and make decisions; and

     (e) Perform routine tasks without undue supervision.

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

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

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

     (ii) Perform routine tasks without undue supervision; or

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

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

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

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

     (a) Relate appropriately to coworkers and supervisors;

     (b) Relate appropriately in contacts with the public;

     (c) Tolerate the pressures of a work setting;

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

     (e) Maintain appropriate behavior in a work setting.

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

[Statutory Authority: RCW 74.04.050, 74.04.055, 74.04.057, 74.08.090, and 74.04.005. 10-08-036, § 388-448-0080, filed 3/31/10, effective 5/1/10. Statutory Authority: RCW 74.04.050, 74.04.055, 74.04.057, 74.08.090. 00-16-113, § 388-448-0080, filed 8/2/00, effective 9/1/00.]

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

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

If you ((are able to)):	Then we assign this exertion level
(a) ((Lift no more than)) Can not lift at least two pounds or ((unable to)) stand and/or walk.	Severely limited
(b) Can lift ten pounds maximum and frequently lift or carry lightweight articles. Walking or standing are only required for brief periods.	Sedentary
(c) Can lift twenty pounds maximum and frequently lift and/or carry objects weighing up to ten pounds. Walk six out of eight hours per day or stand during a significant portion of the workday ((.)), with sitting and ((using)) pushing ((or))/pulling arm or leg movements most of the day.	Light
(d) Can lift fifty pounds maximum and frequently lift and/or carry up to twenty-five pounds.	Medium
(e) Can lift one hundred pounds maximum and frequently lift and/or carry up to fifty pounds.	Heavy

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

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

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

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

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

[Statutory Authority: RCW 74.04.050, 74.04.055, 74.04.057, 74.08.090, and 74.04.005. 10-08-036, § 388-448-0090, filed 3/31/10, effective 5/1/10. Statutory Authority: RCW 74.04.050, 74.04.055, 74.04.057, 74.08.090. 00-16-113, § 388-448-0090, filed 8/2/00, effective 9/1/00.]

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

If you	Then your education level is
(a) ((Can't)) Can not read or write a simple communication, such as two sentences or a list of items.	Illiterate
(b) Have no formal schooling ((or vocational training)) beyond the ((tenth)) eleventh grade; or (c) ((Had)) Have participated in special education ((in basic academic classes of reading, writing, or mathematics in high school)).	Limited education
(d) Have received a high school diploma or general equivalency degree (GED); or (e) Have received skills training and were awarded a certificate, degree or license.	High school and above level of education

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

     (a) ((Defined as gainful employment per WAC 388-448-0010.)) Is normally done for pay or profit. We exclude work done in a sheltered workshop, a job where you were given special consideration, or activities you may have performed as a student or homemaker;

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

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

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

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

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

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

     (((a) The physical and mental ability to perform past work, and there is no significant cognitive, social or nonexertional limitation that would prevent you from performing past work; or

     (b) Recently acquired specific work skills through completion of schooling or training, for jobs within your current physical or mental capacities))

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

.

[Statutory Authority: RCW 74.04.050, 74.04.055, 74.04.057, 74.08.090, and 74.04.005. 10-08-036, § 388-448-0100, filed 3/31/10, effective 5/1/10. Statutory Authority: RCW 74.04.050, 74.04.055, 74.04.057, 74.08.090. 00-16-113, § 388-448-0100, filed 8/2/00, effective 9/1/00.]

     Reviser's note: RCW 34.05.395 requires the use of underlining and deletion marks to indicate amendments to existing rules. The rule published above varies from its predecessor in certain respects not indicated by the use of these markings.
AMENDATORY SECTION(Amending WSR 10-08-036, filed 3/31/10, effective 5/1/10)

WAC 388-448-0110   PEP step VII -- How we evaluate your capacity to perform other work.   If we decide you cannot do work that you've done before, we then decide if you can do any other work.

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

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

     (2) We approve incapacity when you have a (((moderate three) or marked (four))) mental ((health)) impairment ((and we have objective medical evidence, including a mental status exam (MSE) per WAC 388-448-0050, that demonstrates social or cognitive factors described in WAC 388-448-0080, interfere with working as follows)) only and meet the age and social functioning limitations below:

     (((a) You have a moderate impairment in your ability to:

     (i) Be aware of normal hazards and take appropriate precautions.

     (ii) Communicate and perform effectively in a work setting with public contact.

     (iii) Understand, remember, and persist in tasks by following complex instructions of three or more steps.

     (b) You have marked impairment in your ability to:

     (i) Be aware of normal hazards and take appropriate precautions.

     (ii) Communicate and perform effectively in a work setting with limited public contact.

     (c) You have a marked impairment in your ability to:

     (i) Understand, remember, and persist in tasks by following simple instructions of one or two steps;

     (ii) Perform routine tasks without undue supervision;

     (iii) Communicate and perform effectively in a work setting with limited public contact.))

Social limitation	Age
(a) Can not appropriately relate to coworkers and supervisors (rated three); and (b) Can not tolerate the pressures of a work setting (rated four).	Fifty years and older
(c) Can not tolerate the pressures for a work setting (rated five).	Eighteen to fifty-four
(d) A mental disorder severity rated four; (e) One or more symptoms from WAC 388-448-0050(4) (rated five); (f) Can not appropriately relate to coworkers and supervisors (rated three); and (g) Can not tolerate the pressures of a work setting (rated four).	Eighteen to forty-nine

     (3) We approve incapacity when you have ((at least a moderate (three) mental health impairment, a moderate (three) physical impairment and we have objective medical evidence, including a mental status exam (MSE) per WAC 388-448-0050, that demonstrate social or cognitive factors, as described in WAC 388-448-0080,)) both mental and physical impairments and vocational factors interfere with working as follows:

((Work Level)) Your age	Your education	Your other restrictions
((Sedentary)) Any age	Any level	(a) ((You are moderately impaired in your ability to: (i) Understand, remember, and persist in tasks by following complex instructions of three or more steps; (ii) Learn new tasks; (iii) Perform routine tasks without undue supervision)) Can not appropriately relate to coworkers and supervisors (rated three); and (b) Can not tolerate pressures of a work setting (rated four).
((Sedentary)) Fifty or older	Limited education	(((b) You are moderately impaired in your ability to: (i) Communicate and perform effectively in a work setting with public contact)) (c) Restricted to medium work level or less.
((Light)) Eighteen to forty-nine	Limited education	(((c) You are markedly impaired in your ability to: (i) Understand, remember, and persist in tasks by following complex instructions of three or more steps; (ii) Learn new tasks; (iii) Perform routine tasks without undue supervision)) (d) Restricted to light work level.
((Light))		(((d) You are markedly impaired in your ability to: (i) Communicate and perform effectively in a work setting with public contact.))
((Medium))		(((e) You are markedly impaired in your ability to: (i) Understand, remember, and persist in tasks by following simple instructions of one or two steps. (ii) Learn new tasks. (iii) Perform routine tasks without undue supervision.))

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

[Statutory Authority: RCW 74.04.050, 74.04.055, 74.04.057, 74.08.090, and 74.04.005. 10-08-036, § 388-448-0110, filed 3/31/10, effective 5/1/10. Statutory Authority: RCW 74.04.050, 74.04.055, 74.04.057, 74.08.090. 00-16-113, § 388-448-0110, filed 8/2/00, effective 9/1/00.]

     Reviser's note: RCW 34.05.395 requires the use of underlining and deletion marks to indicate amendments to existing rules. The rule published above varies from its predecessor in certain respects not indicated by the use of these markings.

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