LABOR AND INDUSTRIES

[Filed August 20, 2019, 4:13 p.m.]

Preproposal statement of inquiry was filed as WSR 19-12-090.

Title of Rule and Other Identifying Information: Chapter 296-19A WAC, Vocational rehabilitation.

Hearing Location(s): On October 2, 2019, at 10:00 a.m., at the Department of Labor and Industries, 7273 Linderson Way S.W., Room S117/S118, Tumwater, WA 98501.

Date of Intended Adoption: October 22, 2019.

Submit Written Comments to: Laurinda Grytness, Department of Labor and Industries, Insurance Services, P.O. Box 44329, Olympia, WA 98504-4329, email Laurinda.grytness@Lni.wa.gov, fax 360-902-6706, by October 4, 2019, by 6:00 p.m.

Assistance for Persons with Disabilities: Contact Tara Osuna, phone 360-902-4252, fax 360-902-6509, TTY 360-902-4252, email Tara.Osuna@Lni.wa.gov, by September 3, 2019.

Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: The proposed rules will support the department's vocational recovery effort by:


•	Ensuring expectations of vocational providers are better aligned with the return to work language in RCW 51.32.095.
•	Addressing certain requirements for vocational firms.
•	Outlining when and to what degree vocational providers may be subject to corrective action or sanctions.

Early intervention services and reporting:

WAC 296-19A-040, proposes changing the name of early intervention services to vocational recovery services to align with other related, proposed amendments and with the language of RCW 51.32.095. Clarifies that self-insurers may make any of the listed referrals and/or provide services to address priorities listed in RCW 51.32.095(2).

WAC 296-19A-045, removes WAC 296-19A-050 What are vocational recovery services?, from the list of rules about vocational rehabilitation referrals that apply only to state fund claims, in alignment with the proposed amendment to WAC 296-19A-040.

WAC 296-19A-050, in the past, this rule limited the focus of vocational providers to return to work options with the employer of injury or the current employer. The proposed amendment outlines a new service (called vocational recovery) which requires vocational recovery services through the return-to-work priorities (a) through (g) in RCW 51.32.095(2). The proposed amendments support the department's expectations of vocational providers to provide worker-centric services that address work disability, use best practices to increase worker engagement and activation, and focus on assisting the worker with their needs and return to work goals.

WAC 296-19A-060, the proposed amendment replaces early intervention progress reports with a vocational recovery plan, strategies, and next steps. After submitting the vocational recovery plan to the department and the worker, the vocational provider sends an update every thirty days.

Assessment services (ability to work assessment):

WAC 296-19A-065, under current rules, when return to work options with the employer of injury are exhausted or do not exist, the vocational provider recommends an ability to work assessment, which focuses on determining whether a worker may be eligible for retraining. The proposed amendment, when combined with the proposed changes in WAC 296-19A-050, eliminates the gap in services by redefining ability to work assessment as an activity that generally occurs only after the vocational provider has applied the services outlined in the new vocational recovery rule (WAC 296-19A-050), documented their efforts, and those services did not result in a return to work or a valid job offer.

Qualifications to provide vocational services:

WAC 296-19A-210, the proposed amendment outlines requirements for vocational firms to receive referrals, including completing and submitting the firm provider agreement and updating it at least annually, adhering to guidelines for distribution of unassigned firm referrals, and submitting, implementing, and reporting on a department-approved quality assurance plan.

Proposed new rules on vocational provider/firm conduct:

The current rules are very limited regarding vocational rehabilitation counselor behaviors or conduct; the majority of these rules address adherence to other rules and billing policies. The department proposes new rules to address these issues.

WAC 296-19A-262, lists actions related to conduct that may result in corrective action or sanctions.

WAC 296-19A-264, outlines the potential corrective actions or sanctions.

WAC 296-19A-266, describes how the department will handle complaints or allegations of sexual misconduct/contact by a vocational provider, outlining when and to what degree they may be subject to corrective action or sanctions.

WAC 296-19A-268, clarifies that vocational providers are subject to background checks at least once every two years and prior to receiving referrals for services.

WAC 296-19A-269, makes provisions for independent review for permanent sanctions.

Proposed for repeal:

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

Reasons Supporting Proposal: See above.

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

Statute Being Implemented: RCW 51.32.095.

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: Laurinda Grytness, Tumwater, Washington, 360-902-6362; Implementation: Ryan Guppy, Tumwater, Washington, 360-902-5931; and Enforcement: Vickie Kennedy, Tumwater, Washington, 360-902-4997.

A school district fiscal impact statement is not required under RCW 28A.305.135.

A cost-benefit analysis is required under RCW 34.05.328. A preliminary cost-benefit analysis may be obtained by contacting Laurinda Grytness, Department of Labor and Industries, Insurance Services, P.O. Box 44329, Olympia, WA 98504-4329, phone 360-902-6362, fax 360-902-6706, TTY 360-902-4252, email Laurinda.grytness@Lni.wa.gov.

The proposed rule does not impose more-than-minor costs on businesses. Following is a summary of the agency's analysis showing how costs were calculated. The delivery of vocational recovery services, with a worker-centric approach and application of best practices, will increase the likelihood of workers' return to work and/or stay at work, and decrease work disability and associated costs. This is expected to result in an overall cost savings to the workers' compensation system. Currently, the first vocational intervention on a claim is an ability to work assessment (AWA). Under the proposed rules, vocational recovery services will be the first intervention and limited scope AWAs will be performed only when no return to work options are identified with vocational recovery services. In 2018, the department began a pilot to test the vocational recovery services. As discussed in the cost-benefit analysis, the average costs of first AWA services is $3,059 compared to an average cost of the vocational recovery pilot of $2,100. Twenty percent of the department's pilot vocational recovery referrals moved to AWA, with average costs of subsequent AWA of $2,315. Looking at total number of referrals in 2018, the vocational recovery services costs would result in a total average claim cost of approximately $18.5 million compared to an approximate cost of $22 million for AWA services as the first intervention. In addition, employers pay premiums on a per worker-hour/unit basis for each assigned risk class so there is no potential for any disproportionate impact on small businesses even if the overall cost to claims was increased.

Specific to vocational providers, the department will pay vocational providers for appropriately billed services. Vocational firms generally consider oversight planning in their administrative overhead, and the department has worked closely with a representative group of firm owners and managers to identify quality assurance elements that can be evaluated and validated through existing methods and processes.

AMENDATORY SECTION(Amending WSR 17-19-089, filed 9/19/17, effective 10/20/17)

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

(1) All vocational rehabilitation services must be preauthorized. For state fund claims, the department may make one or more of the following type of referrals: ((Early intervention))Vocational recovery; ability to work assessment ("AWA" or "assessment"); plan development; plan implementation; forensic services; or stand alone job analysis. Self-insurers may also make any of the listed referrals and/or provide any other services they consider appropriate to address priorities listed in RCW 51.32.095(2). Each referral is a separate authorization for vocational rehabilitation services.

(2) Option 2 vocational services are considered authorized for state fund and self-insured claims once the department accepts the worker's election of Option 2. However, the services can only be provided upon request from the worker to the vocational provider.

AMENDATORY SECTION(Amending WSR 08-06-058, filed 2/29/08, effective 3/31/08)

WAC 296-19A-045Which rules under "vocational rehabilitation referrals" apply only to state fund claims?

WAC ((296-19A-050,)) 296-19A-060, 296-19A-080, 296-19A-098, 296-19A-118, and 296-19A-125 through 296-19A-137 pertain only to referrals for vocational rehabilitation services made by the department for state fund claims.

AMENDATORY SECTION(Amending WSR 00-18-078, filed 9/1/00, effective 6/1/01)

WAC 296-19A-050What are ((early intervention))vocational recovery 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.))(1) Vocational recovery services are intended to ensure appropriate support is provided to an industrially injured or ill worker so that they return to work, continue to work, or are enabled to become employable at gainful employment consistent with the priorities listed in RCW 51.32.095 (2)(a) through (g) with the highest priority given to returning a worker to employment:

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

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

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

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

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

(g) Modification of a new job with a new employer.

(2) In each case referred to a vocational provider, the vocational recovery services include work disability prevention best practices identified by the department and periodically published through policy bulletins available from the department and recorded with the office of the code reviser. These best practice services include, but are not limited to, the following which must be addressed by the vocational provider prior to consideration of when and which of the priorities listed in subsection (1) of this section may be most appropriate for the worker:

(a) Identify and, as appropriate, use their skills and professional judgment along with accessing available community resources that do not impose a cost on the department or injured worker to proactively address barriers that may interfere with or prevent the worker from returning to any work, including transitional or modified work;

(b) Assist the worker in identifying return to work goals and steps necessary to achieve those goals; and

(c) Assess the worker's potential preferred worker status, educating the worker and employer(s) on transitional and permanently modified work, the Washington stay at work program, and the preferred worker benefits, if appropriate.

(3) Vocational recovery services also include, but are not limited to, those described below specific to the priorities listed in RCW 51.32.095(2).

(a) When consistent with the worker's return to work goals (see subsection (2)(b) of this section), in evaluating the priorities listed in RCW 51.32.095 (2)(a) through (d) which involve return to work with the same employer, the vocational provider will:

(i) Except for return to work at the previous job with the same employer, assist the worker with job readiness and job placement services, if applicable;

(ii) Plan and work with the worker, the employer, the attending provider, and the department or self-insured employer to identify and pursue possible return to work opportunities and any necessary job modifications and prejob accommodations, when applicable;

(iii) Work with the worker and the employer to develop job description(s) or job analysis(es) that include the physical demands necessary to perform the work. Vocational providers must use their professional judgment when determining whether a job description or job analysis is appropriate, except during an ability to work assessment as outlined in WAC 296-19A-065 during which job analyses are required;

(iv) Based on the job description or descriptions, obtain approval from the attending provider that the job or jobs are appropriate for the worker's accepted condition(s), when applicable;

(v) Assist the employer with an offer of employment, and assist with resolution of disagreements about job offers, if needed;

(vi) Assist the employer with accessing return to work incentives such as those offered through the Washington stay at work and preferred worker programs, when applicable;

(vii) Document all offers of employment and the worker's response;

(viii) Monitor any return to work and assist in resolving barriers or concerns of the employer and/or worker, when applicable.

(b) When consistent with the worker's return to work goals (see subsection (2)(b) of this section), for the priorities listed in RCW 51.32.095 (2)(e) through (g) which involve return to work at a job with a new employer, the vocational provider will:

(i) Assist the worker with job readiness and job placement services, and in identifying opportunities through WorkSource partners and other organizations that support return to work;

(ii) Assist the worker to develop a resume or work history as a tool to identify the worker's knowledge, skills, and interests;

(iii) Plan and work with the worker, the new employer, if applicable, the attending provider, and the department or self-insured employer on necessary job modifications and prejob accommodations;

(iv) Work with the worker and with the new employer, if applicable, to develop a job description that includes the physical demands necessary to perform the work;

(v) Based on the job description or descriptions, obtain medical approval from the worker's attending provider that the job or jobs are appropriate for the worker's accepted conditions;

(vi) Assist the new employer with an offer of employment, if needed;

(vii) Assist the new employer with accessing return to work incentives such as those offered through the preferred worker program, if applicable;

(viii) Document all offers of employment and the worker's response;

(ix) Monitor any return to work and assist in resolving barriers or concerns of the employer and/or worker, when applicable.

(4) To ensure appropriate assistance has been provided or offered to the worker so that they return to work, continue to work, or are enabled to become employable as outlined in subsections (2) and (3) of this section the vocational provider must document their efforts to provide the services outlined in subsection (3)(a)(i) through (viii) and (b)(i) through (ix) of this section, including offers of employment and the worker's response(s), prior to requesting a referral for an ability to work assessment as described in WAC 296-19A-065.

AMENDATORY SECTION(Amending WSR 03-11-009, filed 5/12/03, effective 2/1/04)

WAC 296-19A-060What reports does the department require when ((early intervention))vocational recovery services are provided at its request?

(1) ((Progress reports.)) The vocational ((rehabilitation)) provider must ((submit a written progress report))engage the worker to develop a vocational recovery plan. The vocational recovery plan should include the needs and goals of the worker and steps or strategies to address these. The plan may change as appropriate for the worker's needs and goals. A copy or copies of the vocational recovery plan must be provided to the worker and to the department((, and upon request, to the injured worker or the injured worker's representative, every thirty calendar days from the date of the electronic 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;

(d) Description of the specific actions the provider intends to take to overcome barriers and the expected time frame to complete those actions)). Every thirty days, the vocational provider must provide to the department and to the worker a brief summary of steps taken since the last update to address the worker's needs and goal(s). Examples include, but are not limited to, progress in resolving the worker's concerns and barriers to returning to work such as meetings with an employer or employers, meetings with the worker's attending provider, helping the worker understand the claim and vocational processes, and engaging the worker in community resources and/or WorkSource.

(2) Closing reports. The vocational provider must ((always submit an early intervention))submit a vocational recovery closing report at the conclusion of services unless advised otherwise by the department. In the report the provider must include or address:

(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;

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

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

(f) Any other supporting documentation;

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

(h) Documentation that no return to work options exist with the employer of injury or current employer, if applicable.))Whether a return to work outcome was achieved and, if so, whether the return to work is considered temporary, permanent, modified, or transitional;

(b) If a return to work outcome was not achieved, an outline of the vocational provider's efforts as required in WAC 296-19A-050(4).

(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.

AMENDATORY SECTION(Amending WSR 08-06-058, filed 2/29/08, effective 3/31/08)

WAC 296-19A-065What ((are))is an ability to work assessment ((services))?

((Assessment services are used by))(1) Workers may be referred to a vocational provider for assessment activities at the discretion of the department or self-insured employer to determine if a worker ((should))is eligible to receive vocational rehabilitation plan development services. Assessment ((services))activities will generally occur after all of the following:

(a) The vocational provider has applied the services outlined in WAC 296-19A-050 What are vocational recovery services?;

(b) The services did not result in a return to work or a valid job offer or offers; and

(2) During an ability to work assessment, the vocational provider will maintain regular communication with the worker, addressing the worker's concerns, assisting to resolve barriers, as appropriate, and updating them on assessment activities to include information requested and/or collected.

(3) Assessment activities may include, but are not limited to, the following:

(((1)))(a) Documenting work restrictions;

(((2)))(b) Performing job analyses;

(((3)))(c) Evaluating the worker's ability to work at the job of injury((;

(4) Assessing))or any other job including an assessment of the worker's transferable skills;

(((5)))(d) Conducting labor market surveys as defined in WAC 296-19A-140;

(((6) Evaluating the worker's ability to work at any other job;

(7)))(e) Evaluating the worker's ability to benefit from plan development services, including any and all vocational testing considered necessary to support a recommendation for retraining eligibility, if appropriate; ((and

(8)))(f) Documenting a recommendation to the department or self-insured employer on whether the worker is employable at gainful employment, consistent with RCW 51.32.095 (2)(a) through (g) or whether vocational plan development is both necessary and likely to make the worker employable at gainful employment;

(g) Assessing the worker's need for preferred worker status and when appropriate educating the worker on the preferred worker benefit((.)); and

(h) If a worker indicates an interest in returning to work and, in the professional judgment of the vocational provider, the worker has the necessary skills and abilities to do so consistent with their medical restrictions, the vocational provider may provide those services listed in WAC 296-19A-050 as they deem appropriate.

AMENDATORY SECTION(Amending WSR 04-08-045, filed 3/31/04, effective 7/1/04)

WAC 296-19A-210What 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 as of November 30, 2000, will be required to meet the qualification criteria in (a) of this subsection no later than November 30, 2010.

(c) The VRC assigned to or directly receiving the referral from the referral source is responsible for all work performed by any vocational provider on that referral.

(2) VRC supervisor of interns (supervisor).

(a) The supervisor must meet the qualification requirements for a VRC in subsection (1)(a) and (b) of this section.

(b) The supervisor must provide proof of a total of five years full-time experience providing, evaluating, analyzing and/or assessing vocational services. For the purposes of this rule, "vocational services" are those defined in WAC 296-19A-010(2). At least three of the five years must be under Title 51 RCW.

(c) A maximum of thirty-six months in intern status may be counted toward the five years of experience needed to become a supervisor.

(d) Supervisors are expected to monitor and assist in the training and professional development of interns under their supervision, in order to ensure that interns develop the requisite knowledge and professional skills to become competent VRCs. A supervisor's responsibilities((,)) include, but are not limited to:

(i) Monitoring billing;

(ii) Monitoring work;

(iii) Monitoring professional behavior;

(iv) Promoting professional development and assisting the intern in meeting the department's requirements to become a VRC; and

(v) Communicating statute, rule and policy.

(3) Forensic services—In order to provide forensic services to the department, on or after the effective date of this rule, a VRC must provide proof of five years full-time experience providing direct vocational services to Washington state industrially injured or ill workers, and must possess a CRC or ABVE certification. Vocational providers previously approved to provide this service, under chapter 296-19A WAC, will retain that status.

(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. Interns will remain in internship status during this time frame.

(c) Interns registered with the department as of November 30, 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, 2010.

(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.

(e) No person shall serve as an intern under these rules for more than seventy-two months of full-time experience, or its equivalent, working with industrially injured or ill workers. The intern must notify the department when there is a change in the status of an internship.

(5) Interns may not receive referrals directly from the department or self-insured employers. Interns may perform aspects of vocational rehabilitation services under the supervision of a VRC supervisor.

(6) Providers who receive or are assigned referrals must comply with all electronic security requirements in place for accessing department files.

(7) Providers registered with the department as of November 30, 2000, who do not meet the above qualification requirements within the ten-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).

(8) Business requirements for vocational rehabilitation firms.

(a) ((Providers))Vocational rehabilitation firms must comply with all federal and state laws, regulations and other requirements with regard to business operations. This includes, but is not limited to, a unique federal tax identification number (federal employer identification number, individual tax identification number, or Social Security number) and, if hiring employees or opting for coverage as a self-employed sole proprietor, a unified business identifier and industrial insurance account in good standing. In order to be eligible to receive referrals from the department, ((providers))firms 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))Vocational rehabilitation firms may be partnerships, corporation, sole proprietors, or other legal entities. The firms 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))firms must satisfy the requirements set forth in this subsection in every service location in which they wish to operate.

(d) Vocational rehabilitation firms and 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))firms must satisfy the requirements set forth in (c) and (d) of this subsection in every service location in which they wish to operate.

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

(9) In order to receive referrals from the department, vocational rehabilitation firms must first:

(a) Complete the vocational rehabilitation firm provider agreement, attesting to and providing documentation required by the department of adherence to the requirements in subsection (8) of this section;

(b) Submit an updated firm provider agreement at least annually;

(c) Adhere to the guideline for distribution of unassigned firm vocational referrals as signed by the firm owner or manager;

(d) Submit, implement, and periodically report on a department approved quality assurance plan at intervals determined by the department. For purposes of this section, "quality assurance plans" document the process the vocational firm will use to ensure certain services or tasks are completed consistent with statutory requirements, rules, and department policies. Examples of possible quality assurance elements that would be reported on and addressed in a firm's plan include completion and submission of a vocational recovery plan, face-to-face meetings with workers and other claim parties under certain circumstances, and contacting the worker every fourteen days during a retraining plan.

(e) Results and remedial actions as outlined in the department approved quality assurance plan must be provided to the department at intervals set forth in the policy. Elements of quality assurance plans may be periodically updated by the department. Vocational rehabilitation firms will be given at least sixty days' notice of changes in quality assurance elements, reporting frequency, or other intended updates to quality assurance expectations.

(10) The department may ((assign a provider number))make referrals to a vocational rehabilitation firm, partnership, corporation, sole proprietor, 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.

WAC 296-19A-262What actions related to conduct, behavior, or ethical violations by a credentialed vocational provider, intern, or firm may result in corrective action or sanctions?

(1) Internal staff and parties to a claim can submit concerns or complaints to the department about a vocational provider or firm at any time. The department's program that is responsible for the conduct of vocational providers reviews all concerns and complaints. The program's intent is to resolve the issues at the lowest possible level, for example, through conversation and collaboration with the vocational provider and their firm.

(2) However, a vocational provider and/or vocational firm may be subject to corrective action or sanctions for conduct that does not comply or is inconsistent with the applicable laws and policies including, but not limited to:

(a) Title 51 RCW, Industrial insurance;

(b) Chapter 49.60 RCW, Discrimination—Human rights commission;

(d) Medical aid fee schedule and payment policies;

(e) Department policies.

(3) Examples that may warrant investigation and/or corrective action or sanctions include, but are not limited to:

(a) Situations involving a real or perceived conflict of interest;

(b) Misrepresentation;

(c) Situations where the vocational provider or firm has, or is perceived to have, abused the relationship between the vocational provider and the worker.

WAC 296-19A-264What potential corrective actions or sanctions may the department order or direct, and who is responsible for administering the sanction(s)?

(1) Corrective actions or sanctions can include, but are not limited to:

(a) Reprimand;

(b) Remedial education courses and/or other educational or training programs;

(d) Probation;

(e) Inability to receive payment or recoupment of payments, plus interest, made to the provider;

(f) Assessment of penalties;

(g) Denial or rejection of a request for payment;

(h) Temporary placement of a provider on prepayment review, requiring submission of supporting documents prior to payment;

(i) Rejection of a provider's application to provide vocational rehabilitation services;

(j) Permanent restrictions such as supervision when meeting with a client or placement on prepayment review; or

(k) Permanent revocation of the unique identifier for the vocational rehabilitation counselor or intern (VRC ID). Permanent revocation means the provider cannot obtain a provider number, bill, or receive referrals for services from the department or a self-insured employer. Termination of credentials by a credentialing body for any reason will result in immediate revocation of the VRC ID number.

(2) The department may consider its prior actions in determining the appropriate corrective actions or sanctions.

(3) The department shall communicate temporary corrective actions or sanctions against an individual vocational provider or intern by notice to the vocational firm and to the individual. The notice shall include how to request reconsideration from the department or appeal the decision to the board of industrial insurance appeals.

(4) The firm is responsible for developing an oversight plan to be provided to the department within thirty days of the notice.

(a) The department will notify the firm of its acceptance of the plan within fifteen days of receipt.

(b) If the plan is unacceptable, the department will alter the plan and submit it to the firm owner or manager for signature and implementation within thirty days.

(5) Until temporary corrective actions or sanctions are completed, the department will report them to another hiring firm when the new firm requests a provider number for the vocational provider to whom the action/sanction applies. The new firm will be responsible for completing the oversight that was originally agreed to by the department.

(6) If temporary actions/sanctions apply to a firm or to a sole proprietor, the department will develop an oversight plan and communicate it to the firm owner or manager.

(7) Permanent vocational provider sanctions or restrictions, including revocation of the VRC ID number, shall be effective fifteen days after notice is issued to the vocational provider and to the firm employing the provider. The notice shall include all of the following:

(a) The basis for the action;

(b) How to request reconsideration from the department or appeal the decision to the board of industrial insurance appeals; and

(8) Records of corrective actions and sanctions are available for five years to any party by submitting a request to the department's public records unit.

(9) The department may report corrective actions or sanctions to the appropriate credentialing body or bodies.

WAC 296-19A-266How will the department handle complaints or allegations of sexual misconduct or contact?

(1) Specific to allegations of sexual misconduct or contact, the department will initiate an investigation by department staff or by an external investigative agency following a complaint or an internal request for review. The department shall determine any appropriate sanctions after receiving the investigation report.

(2) Sexual misconduct or sexual contact with any party involved in a worker's compensation claim for which the provider is providing services will result in corrective actions or sanctions based on the table below. These parties include, but are not limited to: The injured worker, the worker's immediate family members, employer, medical and other service provider(s), and legal counsel.

	Sexual Misconduct or Sexual Contact (including convictions of sexual misconduct)
Severity	Tier/Conduct	Sanction Range In Consideration of Aggravating & Mitigating Circumstances		Duration
Severity	Tier/Conduct	Minimum	Maximum	Duration
Least ↓	A-Any conduct, contact, or statements of a sexual or romantic nature	Conditions may include reprimand, training, short-term monitoring, and/or evaluation to be performed by the VRC's vocational firm and reported to the department.	Minimum conditions and oversight by the vocational firm and reported to the department at least every six months for three years which may include supervision when meeting with a client and/or probation.	0-3 years
↓	B-Sexual contact, romantic relationship, or sexual statements that risk or result in client harm	Oversight for two years which may include training, probation, suspension, practice restrictions, monitoring, supervision when meeting with a client, and/or evaluation to be monitored by the vocational firm and reported to the department at least every six months.	Minimum conditions for up to five years or permanent restrictions or revocation of the VRC ID number.	2-5 years Unless permanent revocation of VRC ID number
↓ Greatest	C-Sexual contact involving force and/or intimidation, and convictions of sexual offenses in RCW 9.94A.030	Permanent revocation of the VRC ID number.		Permanent Revocation of VRC ID number

(3) The department shall report all cases of sexual misconduct or contact that result in sanctions to the appropriate credentialing body.

WAC 296-19A-268Are vocational providers subject to criminal background checks?

Vocational providers have unsupervised access to injured workers and their personal identifiers and medical information. Because of this, they are subject to periodic criminal background checks at least once every two years, in addition to satisfying a background check before receiving a provider number. The department shall determine whether pending criminal charges or a conviction may warrant suspension or revocation of a VRC ID number.

WAC 296-19A-269What are the provisions for independent review for permanent sanctions?

(1) The department shall establish an independent review panel of at least three private sector vocational providers. The panel will act as consultants whenever the department believes misconduct or failure to pass a criminal background check may warrant permanent restrictions or revocation of the VRC ID number.

(2) At least one member of the panel must hold the same credential as that of the provider whose conduct is under review, unless the provider is an intern.

(3) The review panel shall receive:

(a) A copy of the investigative report; and

(b) The results of the background check, and/or any complaint(s) with the names of the vocational provider and their employing vocational firm redacted.

(4) The department shall consider the feedback of the review panel when making its final decision on the level of permanent restrictions or revocation of the VRC ID number.

The following section of the Washington Administrative Code is repealed:

What are the possible consequences for a provider that does not comply with the RCWs, WACs, or department policies?