WSR 13-17-076 PROPOSED RULES DEPARTMENT OF EARLY LEARNING [Filed August 16, 2013, 1:37 p.m.]
Original Notice.
Preproposal statement of inquiry was filed as WSR 13-11-088.
Title of Rule and Other Identifying Information: WAC 170-03-0290 regarding stay of department of early learning (DEL) action and WAC 170-03-0300 regarding stay of summary suspension of child care license.
Hearing Location(s): DEL, Seattle Office, 3600 South Graham Street, Seattle, WA 98118, on September 24, 2013, at 6 p.m.; and DEL, Yakima Office, 111 South 2nd Avenue, Yakima, WA 98902, on September 25, 2013, at 6 p.m.
Date of Intended Adoption: Not earlier than September 25, 2013.
Submit Written Comments to: Rules Coordinator, P.O. Box 40970, Olympia, WA 98504-0970, online at https://apps.del.wa.gov/PolicyProposalComment/Detail.aspx, e-mail Rules@del.wa.gov, fax (360) 586-0533, by September 25, 2013.
Assistance for Persons with Disabilities: Contact DEL rule coordinator by September 17, 2013, (360) 407-1962.
Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: To clarify WAC 170-03-0290 regarding stay of DEL action and WAC 170-03-0300 regarding stay of summary suspension of child care license.
Reasons Supporting Proposal: The proposed rules clarify the procedure for requesting a stay of summary suspension of a child care license, the manner in which a stay is heard, and the grounds under which a stay may be granted or denied.
Statute Being Implemented: Chapter 43.215 RCW.
Rule is not necessitated by federal law, federal or state court decision.
Name of Proponent: DEL, governmental.
Name of Agency Personnel Responsible for Drafting: Lynne Shanafelt, Licensing Administration, DEL State Office, P.O. Box 40970, Olympia, WA 98504, (360) 407-1953; Implementation and Enforcement: DEL licensing offices, statewide.
No small business economic impact statement has been prepared under chapter 19.85 RCW. The proposed rules are not expected to impose new costs on businesses that are required to comply. If the rules result in costs, those costs are not expected to be "more than minor" as defined in chapter 19.85 RCW.
A cost-benefit analysis is not required under RCW 34.05.328. DEL is not among the agencies listed as required to comply with RCW 34.05.328.
August 16, 2013
Elizabeth M. Hyde
Director
AMENDATORY SECTION (Amending WSR 08-06-102, filed 3/5/08, effective 4/5/08)
WAC 170-03-0290 Stay of DEL action.
Only (((1) Except)) as set forth in WAC 170-03-0300, at any point in the proceeding before OAH or the review judge, the appealing party may request that an ALJ or review judge stay (stop) a DEL action until there is a decision entered by the ALJ or review judge. (((2) The ALJ shall not grant a stay unless the ALJ makes specific findings that the stay is in the public interest or is made for good cause. In finding good cause the ALJ must determine: (a) The party requesting the stay is likely to prevail in the hearing on the merits; (b) The party requesting the stay will suffer irreparable injury, if the stay is not granted; and (c) The threat to the public health, safety, or welfare is not sufficiently serious to justify the agency action in the circumstances of the case.))
AMENDATORY SECTION (Amending WSR 08-06-102, filed 3/5/08, effective 4/5/08)
WAC 170-03-0300 Stay of summary suspension of child care license.
(1) The department may immediately and summarily suspend a license when: (a) It finds that conditions in the licensed facility constitute an imminent danger to a child or children in care; or (b) The public health, safety, or welfare requires emergency action. (2) Pursuant to WAC 170-03-0040 and WAC 170-03-0050 a licensee may request a hearing to challenge the decision to summarily suspend a license. A licensee who contests a summary suspension of a license ((by the department)) may obtain a stay of the effective((ness)) date of the((at)) suspension ((order)) only as set forth in this section. (3) It shall be the licensee's burden to establish that the stay is in the public interest and is made for good cause. (4) (((3))) The licensee's ((may)) request for a stay of the summary suspension must be made by filing a motion for stay of summary suspension. The motion for stay of summary suspension must be filed with the initial request for hearing, or by subsequent motion ((including such a request in the request for hearing or in a subsequent motion)). The motion for stay, and documents and pleadings described in WAC 170-03-0300(5), shall be served on the Office of Administrative Hearings, and Attorney General's Office, by noon on the seventh day before the hearing, unless a shorter time is ordered. Reply affidavits or declarations shall be served on the licensee's attorney, or representative, by noon on the day prior to the hearing. If unrepresented, the reply affidavits or declarations shall be served on the licensee. (5) The motion ((request)) for stay must be accompanied by a statement of grounds justifying the stay and a description of evidence setting forth the factual basis upon which the request is based. The decision to grant or deny the request for a stay shall be based on (a) Legal authority; and (b) Affidavits or declarations signed under penalty of perjury. (6) The hearing officer shall not allow the presentation of oral testimony at a stay hearing except under the following circumstances: (a) The party seeking the opportunity to offer oral testimony must file a motion for permission to offer oral testimony. The decision to grant or deny the motion must be based on affidavits filed in support of or opposition to the motion to offer oral testimony. (b) Oral testimony shall only be permitted if substantial evidence has been presented establishing that the failure to allow oral testimony will deny the moving party the opportunity for a fair stay hearing. (7) (((4))) Upon receipt of a motion ((request)) for a stay, the ALJ shall ((will)) schedule a hearing on the motion, not less than seven days from the date the request is received by the Office of Administrative Hearings ((on the request. The hearing may be combined with a prehearing conference. If it appears that a hearing on the merits and issues of the case should be consolidated with the request for a stay, the ALJ may advance the hearing date on its own initiative or by request of the parties)). (8) (((5))) The ALJ shall not grant the motion for ((a)) stay unless the ALJ makes specific findings that the stay is in the public interest and ((or)) is made for good cause. In finding good cause, the ALJ must determine: (a) The licensee is likely to prevail in the hearing on the merits of the licensing action; (b) The licensee will suffer irreparable injury((,)) if the stay is not granted; and (c) The threat to the public health, safety, or welfare inherent in the licensee's operation of a child care facility is not sufficiently serious to justify the suspension of the license. (d) Economic hardship of itself shall be an insufficient reason for a finding of irreparable injury under WAC 170-03-0300 (8)(b). (((6) Economic hardship of itself shall be an insufficient reason for a stay of a suspension of a license.)) (9) (((7))) Unless otherwise stipulated by the parties, the ALJ, after granting or denying a motion ((request)) for ((a)) stay, will expedite the hearing and decision on the merits. (10) (((8))) The decision on the motion ((request)) for ((the)) stay is subject to review by the review judge at the request of either DEL or the licensee. The request for review must be filed not later than seven days following the date the decision on the motion ((request)) for stay is mailed by OAH to the parties. (11) (((9))) A request for review by the review judge shall be promptly determined. The decision on the request for review by the review judge shall not be subject to judicial review.
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