PERMANENT RULES
SOCIAL AND HEALTH SERVICES
(Management Services Administration)
Effective Date of Rule: Thirty-one days after filing.
Purpose: Amending WAC 388-02-0215 What is the authority of the ALJ (administrative law judge)?
WAC 388-02-0215(4) states the types of cases where the parties may request review of an initial order by a review judge at the DSHS board of appeals (BOA). In general, the proposed rule simplifies the current rule by referencing entire WAC chapters instead of referring to individual WAC sections, and by updating obsolete or changed cross references to WAC chapters. Specific amendments to subsection (4) of WAC 388-02-0215 include:
• In subsection (4)(e), permitting review of cases under chapters 388-71 and 388-101 WAC regarding findings of abuse, abandonment, neglect or financial exploitation rather than specific sections of chapter 388-71 WAC. The reference to chapter 388-101 WAC in this subsection is needed because the DSHS aging and disability services administration is amending that chapter to include references to investigations and findings by the DSHS residential care services of abuse, abandonment, neglect and financial exploitation;
• In subsection (4)(j) replacing obsolete cross references to sections of chapters 388-71 and 388-72A WAC that have been recodified in chapter 388-106 WAC. As does the current rule, this amendment does not authorize the board of appeals to review hearing decisions regarding the client's financial eligibility for long-term care services; and
• In subsection (4)(v), replacing an obsolete reference to chapter 388-820 WAC with the current reference to chapter 388-101 WAC. All sections of previous chapter 388-820 WAC have been recodified as sections in chapter 388-101 WAC.
Department clients and providers will not lose hearing or appeal rights as a result of the proposed amendment.
The department plans to make further amendments to this rule under the preproposal statement of inquiry filed as WSR 05-06-081.
The rule is updated with current WAC references, is clearer, improves efficiency, and increases consistency. Amendments are intended to reduce the need for future amendments to this rule by simplifying WAC references in the list of cases where the parties may request BOA review of an initial order of an office of administrative hearings administrative law judge.
Citation of Existing Rules Affected by this Order: Amending WAC 388-02-0215.
Statutory Authority for Adoption: RCW 34.05.020, 34.05.220.
Other Authority: Chapter 34.05 RCW, Parts IV and V.
Adopted under notice filed as WSR 06-11-150 on May 23, 2006.
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 0, Amended 0, Repealed 0.
Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 1, 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 1, Repealed 0.
Date Adopted: July 20, 2006.
Andy Fernando, Manager
Rules and Policies Assistance Unit
3771.1(2) As needed, the ALJ may:
(a) Determine the order for presenting evidence;
(b) Issue subpoenas or orders directing witnesses to appear or bring documents;
(c) Rule on objections, motions, and other procedural matters;
(d) Rule on an offer of proof made to admit evidence;
(e) Admit relevant evidence;
(f) Impartially question witnesses to develop the record;
(g) Call additional witnesses and request exhibits to complete the record;
(h) Give the parties an opportunity to cross-examine witnesses or present more evidence against the witnesses or exhibits;
(i) Keep order during the hearing;
(j) Allow or require oral or written argument and set the deadlines for the parties to submit argument or evidence;
(k) Permit others to attend, photograph or electronically record hearings, but may place conditions to preserve confidentiality or prevent disruption;
(l) Allow a party to waive rights given by chapters 34.05 RCW or 388-02 WAC, unless another law prevents it;
(m) Decide whether a party has a right to a hearing;
(n) Issue protective orders;
(o) Consider granting a stay if authorized by law or DSHS rule; and
(p) Take any other action necessary and authorized under these or other rules.
(3) The ALJ administers oaths or affirmations and takes testimony.
(4) The ALJ enters an initial order in those cases where the parties may request review of an initial order by a review judge. Cases where the parties may request review of an initial order by a review judge are those relating to:
(a) Adult family home licenses under chapter 388-76 WAC;
(b) Boarding home licenses under chapter 388-78A WAC;
(c) Resident protection program findings under WAC 388-97-077;
(d) Nursing home licenses under WAC 388-97-550 through 388-97-695;
(e) ((Adult protective services)) DSHS findings of
abandonment, abuse, financial exploitation or neglect under
chapters 74.34, 74.39, 74.39A RCW and chapters 388-71 and
388-101 WAC ((388-71-01235 through 388-71-01275));
(f) Where the client has requested a hearing under WAC 388-71-0560, the termination of a provider for placing clients in imminent jeopardy under RCW 74.39A.095(7) and WAC 388-71-0551;
(g) Where the client has requested a hearing under WAC 388-71-0560, the termination of a provider due to inadequate performance or inability to deliver quality care under RCW 74.39A.095(7) and WAC 388-71-0540 and 388-71-0551;
(h) Where the client has requested a hearing under WAC 388-71-0560, the denial of a contract to a provider due to inability of the provider to appropriately meet the care needs of clients under RCW 74.39A.095(8) and WAC 388-71-0546;
(i) Where the client has requested a hearing under WAC 388-71-0560, the denial or termination of a contract and subsequent denial of payment to a provider due to a disqualifying crime or lack of character, competence, or suitability to maintain the health, safety, and well-being of clients under RCW 43.20A.710(5) and WAC 388-71-0540 (3) through (5);
(j) Social service eligibility under ((WAC 388-71-0400
through 388-71-0480, 388-71-0202, and 388-71-0203)) chapter 388-71 WAC, and under chapter ((388-72A)) 388-106 WAC, except
for ((WAC 388-72A-0055(2), 388-72A-0060(1), and 388-72A-0065
(4) through (6))) financial eligibility requirements;
(k) Domestic violence perpetrator treatment program certification under chapter 388-60 WAC;
(l) Licensing or certification of homes, programs, facilities, providers, and agencies serving children, juveniles, expectant mothers and developmentally disabled persons under chapter 74.15 RCW and chapters 388-140, 388-145, 388-147, 388-148 and 388-160 WAC;
(m) Child protective services findings of abuse and neglect under RCW 26.44.125 and chapter 388-15 WAC;
(n) Adoption support under WAC 388-27-0120 through 388-27-0390, for which a hearing has been held under WAC 388-27-0365;
(o) Child day care licenses under chapter 74.15 RCW and chapters 388-150, 388-151, 388-155, 388-295 and 388-296 WAC;
(p) Background checks of protective payees under WAC 388-460-0025, for which a hearing has been held under WAC 388-460-0070;
(q) Background checks of child care providers and other persons under WAC 388-290-0143, for which a hearing has been held under WAC 388-290-0260 as part of the working connections child care program;
(r) Background checks of persons acting in the place of a parent under WAC 388-454-0006, for which a hearing has been held under WAC 388-472-0005 (1)(j);
(s) Claims of good cause for not cooperating with the division of child support under WAC 388-422-0020;
(t) Parent address disclosure under WAC 388-14A-2114 through 388-14A-2140;
(u) Chemical dependency treatment provider certification under chapter 388-805 WAC;
(v) Community residential services and support
certification((, for which a hearing has been held under WAC 388-820-920)) under chapter 388-101 WAC;
(w) Denial or termination of eligibility for services under WAC 388-825-030 and 388-825-035, for which a hearing has been held under WAC 388-825-120 (1)(a);
(x) Development or modification of an individual service plan under WAC 388-825-050, for which a hearing has been held under WAC 388-825-120 (1)(b);
(y) Authorization, denial, reduction, or termination of services under WAC 388-825-055, for which a hearing has been held under WAC 388-825-120 (1)(c);
(z) Licensed community facilities under RCW 74.15.210 and WAC 388-730-0090;
(aa) Community mental health and involuntary treatment program licenses under WAC 388-865-0480;
(bb) Medical, dental, or transportation services, for which a hearing has been held under WAC 388-526-2610;
(cc) Medical provider overpayments, for which a hearing has been held under WAC 388-502-0230(5) or 388-502-0240(17); or
(dd) Background checks under WAC 388-06-0110 that result in denial of authorization for unsupervised access to children or to individuals with developmental disabilities, for which a hearing has been held under WAC 388-06-0240(1); or
(ee) Cases for which a right to a hearing existed, if the request for a hearing was received by OAH or DSHS on or before November 14, 2002, and WAC 388-740-0060 and 388-891-0275 did not apply.
(5) The ALJ makes the final decision and enters the final order in all cases except those cases set forth in subsection (4) of this section.
(6) A review judge has the same authority as an ALJ when presiding at a hearing.
[Statutory Authority: RCW 34.05.020 and chapter 34.05 RCW, Parts IV and V. 05-02-018, § 388-02-0215, filed 12/27/04, effective 1/27/05; 03-13-046, § 388-02-0215, filed 6/11/03, effective 7/12/03. Statutory Authority: RCW 34.05.020, chapter 34.05 RCW, Parts IV and V, 2002 c 371, § 211. 02-21-061, § 388-02-0215, filed 10/15/02, effective 11/15/02. Statutory Authority: RCW 34.05.020. 00-18-059, § 388-02-0215, filed 9/1/00, effective 10/2/00.]