12-03-090

WSR 12-03-090

PERMANENT RULES

DEPARTMENT OF

LABOR AND INDUSTRIES

[ Filed January 17, 2012, 8:29 a.m. , effective March 1, 2012 ]

     Effective Date of Rule: March 1, 2012.

     Purpose: In the 2011 legislative session, the legislature passed EHB 2123 addressing the workers' compensation system. This rule making addresses the part of EHB 2123 which amended chapter 49.17 RCW to provide permanent funding for the safety and health investment projects (SHIP) grants program. The amendments will be put into the Washington Administrative Code (WAC) to make the rules consistent with the legislation and adopt the provisions dictated by statute.

     Citation of Existing Rules Affected by this Order: Amending WAC 296-900-17505, 296-900-17510, 296-900-17515, 296-900-17520, 296-900-17525, 296-900-17530, 296-900-17535, and 296-900-17540.

     Statutory Authority for Adoption: RCW 49.17.010, 49.17.040, 49.17.050, and 49.17.060.

     Other Authority: EHB 2123 (chapter 37, Laws of 2011).

      Adopted under notice filed as WSR 11-22-080 on November 1, 2011.

     Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 8, Repealed 0.

     Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.

     Number of Sections Adopted on the Agency's Own Initiative: New 0, Amended 0, Repealed 0.

     Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 8, Repealed 0.

     Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0;      Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 0, Amended 8, Repealed 0.

     Date Adopted: January 17, 2012.

Judy Schurke

Director

OTS-4229.4

AMENDATORY SECTION(Amending WSR 08-03-025, filed 1/8/08, effective 2/8/08)

WAC 296-900-17505   Scope and purpose.   (1) The program for safety and health investment projects (SHIP) was established during the ((2007)) 2011 legislative session to provide funding for safety and health projects for workplaces ((covered by the medical aid fund)) insured for workers' compensation through the department's state fund. The purpose of these projects shall be to: Prevent workplace injuries, illnesses, and fatalities; create early return to work programs; and reduce long-term disability through the cooperation of employers and employees or their representatives.

     (2) ((Priority is given to projects involving accident prevention through cooperation between employers and employees or their representatives.)) Funds for awards shall be distributed as follows:

     ? At least twenty-five percent for projects designed to develop and implement innovative and effective return-to-work programs for injured workers;

     ? At least twenty-five percent for projects that specifically address the needs of small businesses; and

     ? At least fifty percent for projects that foster workplace injury and illness prevention by addressing priorities identified by the department in cooperation with the Washington Industrial Safety and Health Act advisory committee and the workers' compensation advisory committee.

[Statutory Authority: RCW 49.17.010, 49.17.040, 49.17.050, 49.17.060, 49.17.210, and 2007 c 522. 08-03-025, § 296-900-17505, filed 1/8/08, effective 2/8/08.]

AMENDATORY SECTION(Amending WSR 08-03-025, filed 1/8/08, effective 2/8/08)

WAC 296-900-17510   Definitions.   (1) Applicant means the entity submitting an application and formal proposal for a safety and health investment projects award.

     (2) Department means the department of labor and industries.

     (3) ((Department staff means those individuals within the department of labor and industries who assist with project development and monitor recipient performance.

     (4))) Funding cycle means how frequently safety and health investment project awards are given.

     (((5))) (4) Medical aid fund refers to industrial insurance funds established in chapter 51.44 RCW.

     (((6))) (5) Milestones means critical points of achievement for the safety and health investment projects, showing progress toward project completion. Milestones are interim accomplishments that define project progress.

     (((7))) (6) Product means any of the following that are developed as the result of a safety and health investment project: Written materials; manufactured materials; designs; equipment; programs; services; workplace changes; or other results of any kind, tangible or intangible.

     (((8))) (7) Recipient means an agency, firm, organization, individual or other legal entity receiving project award funds from the safety and health investment projects.

[Statutory Authority: RCW 49.17.010, 49.17.040, 49.17.050, 49.17.060, 49.17.210, and 2007 c 522. 08-03-025, § 296-900-17510, filed 1/8/08, effective 2/8/08.]

AMENDATORY SECTION(Amending WSR 08-03-025, filed 1/8/08, effective 2/8/08)

WAC 296-900-17515   Eligibility.   (1) All projects must address the needs of employers and employees covered by the ((medical aid)) department's state fund.

     (2) Projects must have clearly identified:

     (a) Objectives and work plan;

     (b) Products; and

     (c) Criteria for evaluating the success of the project.

     (3) Awards may be granted to any agency, firm, organization, individual or other legal entity such as, but not limited to, the following:

     (a) Trade associations;

     (b) Business associations;

     (c) Employers (including but not limited to private, public, nonprofit, or self-insured employers if collaborating with medical aid fund employers);

     (d) Employees;

     (e) Labor unions;

     (f) Employee organizations;

     (g) Joint labor and management groups;

     (h) Educational institutions in collaboration with state fund employer and employee representatives;

     (i) Others deemed appropriate by L&I.

     (4) SHIP funds may not be used for:

     (a) Lobbying or political activities;

     (b) Supporting, opposing, or developing legislative or regulatory initiatives;

     (c) Any activity not designed to reduce workplace injuries, illnesses, or fatalities; or

     (d) Reimbursing employers for the normal costs of complying with safety and health rules.

[Statutory Authority: RCW 49.17.010, 49.17.040, 49.17.050, 49.17.060, 49.17.210, and 2007 c 522. 08-03-025, § 296-900-17515, filed 1/8/08, effective 2/8/08.]

AMENDATORY SECTION(Amending WSR 08-03-025, filed 1/8/08, effective 2/8/08)

WAC 296-900-17520   Advisory committee.   (1) The department will create ((an advisory committee representing the broadest spectrum of interests, appointed by the assistant director of the division of occupational safety and health (DOSH), and consisting of:

     (a) Three employer representatives;

     (b) Three employee representatives;

     (c) Two members with expertise in safety and health selected by the assistant director; and

     (d) One nonvoting member from DOSH who will serve as committee chair.

     (2) Members are appointed to serve three-year renewable terms. At the request of the assistant director of DOSH, employer and employee organizations may make recommendations for advisory committee membership.

     (3) The advisory committee will provide the following assistance:

     (a) Make recommendations to DOSH regarding funding priority areas;

     (b) Recommend applications that merit funding to the assistant director of DOSH;

     (c) Keep records of the committee's decisions;

     (d) Make recommendations to DOSH regarding individual project expenditure limitations and appropriate indirect costs;

     (e) Develop and maintain communication networks in the community.

     (4))) a SHIP advisory committee (SAC) that will be a subcommittee of the WISHA advisory committee and will advise the department on program policy issues and participate in the grant application review process. The SAC will have eight to ten members, including equal numbers of employer and employee representatives, and others with relevant experience and expertise. Members will be appointed to serve three-year renewable terms by the assistant director of the division of occupational safety and health (DOSH). The initial term for half of the first group of appointees will be eighteen months. SAC membership will include:

     (a) At least one employer representative from the WISHA advisory committee or an employer representative recommended by the WISHA advisory committee employer representatives; and

     (b) At least one employee representative from the WISHA advisory committee or an employee representative recommended by the WISHA advisory committee employee representatives.

     (2) The SAC will be supplemented by ad hoc grant review committees consisting of selected members of the SAC together with other individuals with experience and expertise in the specific topic areas under review. Members of such ad hoc grant review committees will be appointed by the assistant director for DOSH, taking into consideration recommendations from the SAC and WISHA advisory committee.

     (3) All meetings of the SAC will be convened and chaired by the assistant director for DOSH or designee.

     (4) The SAC will provide the following assistance:

     (a) Advice on SHIP policy issues to DOSH and the WISHA advisory committee;

     (b) Make recommendations to DOSH and the WISHA advisory committee regarding funding priority areas;

     (c) Review and comment on funding recommendations made by grant review committees to the assistant director of DOSH;

     (d) Keep records of the SACs decisions;

     (e) Develop and maintain communication networks in the community.

     (5) SAC and grant review committee members will disclose to the ((committee)) department any potential conflicts of interest with specific project applications, whether direct or indirect. The ((committee)) department will determine whether a member's connection to a project should result in recusal from voting on the project. The ((committee's)) department's decision and reasons supporting the decision will be documented in the meeting minutes.

     (((5))) (6) SAC and grant review committee members will not disclose any information about applications to anyone not authorized access to the information by law or regulation. ((All applications and other material submitted under this program are confidential and are not open to public inspection. See RCW 49.17.210.))

[Statutory Authority: RCW 49.17.010, 49.17.040, 49.17.050, 49.17.060, 49.17.210, and 2007 c 522. 08-03-025, § 296-900-17520, filed 1/8/08, effective 2/8/08.]

AMENDATORY SECTION(Amending WSR 08-03-025, filed 1/8/08, effective 2/8/08)

WAC 296-900-17525   Application.   (1) ((Interested applicants may download an application packet from the web site, or for a printed application, contact:

     Safety and Health Investment Projects

     P.O. Box 44640

     Olympia, WA 98504-4640

     e-mail: [e-mail]

     web site: SafetyGrants.lni.wa.gov)) The department will periodically prepare grant application packets that will be available on the department's web site.

     (2) Applicants must complete the entire application to be considered for project funding. Incomplete applications or those submitted after a posted deadline will not be considered for funding. ((Applications are accepted throughout the year, and funding is awarded throughout each six-month funding cycle. Application deadlines are posted at SafetyGrants.lni.wa.gov. Applications received after posted deadlines will not be considered for the current funding cycle. However, they may be considered for a subsequent funding cycle at the discretion of the assistant director of DOSH, or designee.))

     (3) Some funding cycles may include limitations on the maximum amount that will be awarded for any proposal. Limitations, if any, will be posted ((at SafetyGrants.lni.wa.gov)) on the department's web site or in current application packets.

     (4) All products developed as a result of an approved SHIP project belong in the public domain and their dissemination and use shall not be restricted in any way. Such products may not be copyrighted, patented, claimed as trade secrets, or otherwise restricted in any other way. The department retains the right to publish or otherwise disseminate these products as the department in its sole discretion deems appropriate.

     (5) The department will not use information contained in submitted application packets as the basis for the initiation of compliance inspections or the issuance of citations and/or penalties to applicants, under WISHA, chapter 49.17 RCW. However, employers are not exempt from compliance inspections initiated for other reasons because they submitted an application packet.

     (6) Projects may include, but are not limited to:

     (a) The development and implementation of innovative and effective return-to-work programs for injured workers;

     (b) The development of technical innovation and engineering controls for the recognition and control of workplace hazards;

     (((b))) (c) Best practices for workplace safety and health programs;

     (((c))) (d) Education and training;

     (((d))) (e) Efforts that address the needs of small businesses;

     (f) Priorities identified by DOSH in cooperation with the WISHA advisory committee and the workers' compensation advisory committee; ((and

     (e))) (g) Initiatives intended to build organizational capacity in workplace safety and health; and

     (h) Other projects that foster ((accident)) injury and illness prevention through cooperation between employers and employees or their representatives.

[Statutory Authority: RCW 49.17.010, 49.17.040, 49.17.050, 49.17.060, 49.17.210, and 2007 c 522. 08-03-025, § 296-900-17525, filed 1/8/08, effective 2/8/08.]

AMENDATORY SECTION(Amending WSR 08-03-025, filed 1/8/08, effective 2/8/08)

WAC 296-900-17530   Review and approval of proposals.   (1) DOSH staff will:

     (a) Review applications to make sure they meet application criteria((, and forward those that meet the criteria to the advisory committee.));

     (b) Conduct a substantive evaluation of eligible applications;

     (c) Forward applications along with scored evaluations and funding recommendations to the assistant director for DOSH and a designated grant-review committee.

     (2) The ((advisory)) designated grant-review committee will:

     (a) Review project applications and the accompanying DOSH evaluations and recommendations;

     (b) Evaluate each project application and provide concurrence or dissension with DOSH evaluation and funding recommendations;

     (c) Prioritize and select, by a majority vote of the eligible voting members, those projects recommended for funding((, with a minority report allowed));

     (((c))) (d) Forward ((project)) funding recommendations to the SAC and the assistant director of DOSH ((for final approval)).

     (3) The assistant director of DOSH, after consulting with the SAC, will make a final decision on project approval and funding.

     (a) ((Approval)) Safety and health projects, regardless of size, will be based on the ability of the project to foster accident prevention through cooperation between employers and employees or their representatives; the likelihood of reducing workplace injuries, illnesses, or fatalities; and the ability of the applicant to achieve project goals. Assessment will be based on an objective scoring method developed by the department.

     (b) Return-to-work project approval, regardless of size, will be based on the ability of the project to foster return-to-work through cooperation between employers and employees or their representatives, the likelihood of increasing return-to-work, and the ability of the applicant to achieve project goals. Assessment will be based on an objective scoring method developed by the department.

     (c) If the assistant director rejects an application the grant-review committee has recommended for funding or approves an application the grant-review committee recommended for denial, the assistant director will provide a written explanation to the ((advisory committee)) SAC. The ((advisory committee)) SAC may request reconsideration of such decision by a majority vote of the voting members, with a minority report allowed. The assistant director will reconsider the decision in consultation with the director.

     (4) Applicants will be notified in writing when their application is((:

     (a) Approved for funding;

     (b) Not approved, including the reason it was not funded; or

     (c) Held over for a subsequent funding cycle)) approved or not approved for funding.

     (5) Upon approval of an application and before project activities begin, the department and the applicant will enter into a written agreement. The agreement will:

     (a) Include((s)) the approved application packet in its entirety, which will outline the project scope and timeline, activities, work plan, milestones, and products; and

     (b) Spell((s)) out the terms and conditions governing the project, project participants, and the products resulting from the project.

[Statutory Authority: RCW 49.17.010, 49.17.040, 49.17.050, 49.17.060, 49.17.210, and 2007 c 522. 08-03-025, § 296-900-17530, filed 1/8/08, effective 2/8/08.]

AMENDATORY SECTION(Amending WSR 08-03-025, filed 1/8/08, effective 2/8/08)

WAC 296-900-17535   Monitoring.   ((Department)) DOSH staff will monitor projects for compliance with award terms and achievement of approved project milestones and/or outcomes.

     (1) Milestones are intermediate targets or goals that are defined in the project applications. Ongoing funding will be tied to the achievement of approved milestones (including but not limited to accounting for grant funds).

     (2) Outcomes are the final products that will be produced by the project.

[Statutory Authority: RCW 49.17.010, 49.17.040, 49.17.050, 49.17.060, 49.17.210, and 2007 c 522. 08-03-025, § 296-900-17535, filed 1/8/08, effective 2/8/08.]

AMENDATORY SECTION(Amending WSR 08-03-025, filed 1/8/08, effective 2/8/08)

WAC 296-900-17540   Suspension or revocation of funding.   (1) The assistant director of DOSH may suspend or revoke funding for a project if advised by the SHIP program staff or the ((advisory committee)) SAC that:

     (a) The recipient is not in compliance with project award terms;

     (b) There are unapproved funding expenditures; or

     (c) There are compelling and substantive reasons.

     (2) Any suspension or revocation will:

     (a) Be in writing and delivered by either personal service or certified mail. The suspension or revocation will be effective upon service or five days after being mailed by certified mail;

     (b) Include the reasons for suspension or revocation; and

     (c) Be subject to appeal as described in chapter 34.05 RCW, the Administrative Procedure Act and contain an explanation of how to appeal the department's decision.

[Statutory Authority: RCW 49.17.010, 49.17.040, 49.17.050, 49.17.060, 49.17.210, and 2007 c 522. 08-03-025, § 296-900-17540, filed 1/8/08, effective 2/8/08.]