WSR 00-18-059

PERMANENT RULES

DEPARTMENT OF

SOCIAL AND HEALTH SERVICES

[ Filed September 1, 2000, 11:19 a.m. ]

Date of Adoption: September 1, 2000.

Purpose: The DSHS hearing rules, chapter 388-02 WAC, supplement the procedural provisions Model rules of procedure, chapter 10-08 WAC from the Office of Administrative Hearings. These rules describe procedures for resolution of disputes between DSHS and its clients, vendors, contractors, and customers. The rules clarify DSHS hearing procedures. These rules have been written to comply with Executive Order 97-02 and use clear rule-writing techniques to make information easy to find and understand by DSHS clients, vendors, contractors, and customers.

Statutory Authority for Adoption: RCW 34.05.020.

Adopted under notice filed as WSR 00-10-034 on April 24, 2000.

Changes Other than Editing from Proposed to Adopted Version: WAC 388-02-0010, corrected grammatical error in definition of "DSHS representative." The definition of "party" was reorganized to clarify that DSHS is also a party in a hearing.

WAC 388-02-0070 and 388-02-0075, clarified that delivery is required for filing documents.

WAC 388-02-0085, reorganized and added language encouraging an individual to request a hearing if they are not sure whether they actually have a hearing right.

WAC 388-02-0115, clarified that a person may withdraw a hearing request if the ALJ and the other party are present.

WAC 388-02-0125, corrected subsection (1) by stating that an "intermediary interpreter" means an interpreter who is a certified deaf interpreter (CDI). Added that a qualified interpreter for a person with a hearing impairment includes a visual language interpreter certified by a national association of the deaf.

WAC 388-02-0145, added the "hearing impaired person" to the list of people who choose the appropriate interpretive mode when interpreters are used.

WAC 388-02-0155, added language stating that a person requesting a hearing should let DSHS or OAH know the name, address, and telephone number of their representative.

WAC 388-02-0160, corrected a term to be consistent with WAC 388-02-0180.

WAC 388-02-0210, added the term "reverse" to show that an ALJ may reverse the DSHS action if DSHS does not attend the prehearing conference.

WAC 388-02-0225, added language emphasizing that only a court may decide if a DSHS rule is invalid.

WAC 388-02-0375, 388-02-0520 and 388-02-0570, corrected the cite.

WAC 388-02-0475, clarified the language.

WAC 388-02-0515, prescribed where deadlines are found.

WAC 388-02-0590, added language to clarify the timeline for requesting more time to respond to a petition for review.

WAC 388-02-0610, deleted inaccurate language.

WAC 388-02-0630, added language to clarify the timeline for requesting more time to respond to a reconsideration request.

WAC 388-02-0650, added in-person service information for the AAG's office.

Variation from the Model Rules of Procedure: Under RCW 34.05.250 agencies are required to report any variation from model rules of procedures outlined by the Office of Administrative Hearings (chapter 10-08 WAC). DSHS hearing rules are now found in chapter 388-02 WAC. They are written using clear rule-writing techniques to supplement the model rules of procedure.

Questions were used in the titles of the rule to assist users to quickly and easily find information. The rules also clarify DSHS responsibilities for hearings, extend the time for vacating dismissal orders, and specify the authority of administrative law judges to stay an action. The rule puts legal terms such as evidence, subpoenas, and burden of proof in language the public can understand. Prehearing guidelines are incorporated into the rule to encourage early dispute resolution between DSHS and its clients, vendors, contractors, and customers.

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 130, Amended 0, Repealed 0.

Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 130, 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 130, Amended 0, Repealed 0. Effective Date of Rule: Thirty-one days after filing.

September 1, 2000

Edith M. Rice, Chief

Office of Legal Affairs

2688.17
Chapter 388-02 WAC

DSHS HEARING RULES

GENERAL
NEW SECTION
WAC 388-02-0005
What is the purpose and scope of this chapter?

This chapter describes the general procedures that apply to the resolution of disputes between you and the various programs within the department of social and health services (DSHS). The rules of this chapter are intended to supplement for DSHS both the Administrative Procedure Act (APA), chapter 34.05 RCW, and the model rules, chapter 10-08 WAC, adopted by the office of administrative hearings (OAH).

(1) This chapter:

(a) Establishes rules encouraging informal dispute resolution between DSHS and persons or entities who disagree with its actions;

(b) Regulates all hearings involving DSHS; and

(c) Consolidates most DSHS hearing procedural rules into one chapter.

(2) Nothing in this chapter is intended to affect the constitutional rights of any person or to limit or change additional requirements imposed by statute or other rule. Other laws or rules determine if you have a hearing right, including the APA and DSHS program rules or laws.

(3) Specific DSHS program hearing rules prevail over the rules in this chapter.

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NEW SECTION
WAC 388-02-0010
What definitions apply to this chapter?

The following definitions apply to this chapter:

"Administrative law judge (ALJ)" means an impartial decision-maker who is an attorney and presides at an administrative hearing. The office of administrative hearings (OAH), which is a state agency, employs the ALJs. ALJs are not DSHS employees or DSHS representatives.

"BOA" means the DSHS board of appeals.

"Business days" means all days except Saturdays, Sundays and legal holidays.

"Calendar days" means all days including Saturdays, Sundays and legal holidays.

"Deliver" means giving a document to someone in person.

"Documents" means papers, letters, writings, or other printed or written items.

"DSHS" means the department of social and health services.

"DSHS representative" means an employee of DSHS, a DSHS contractor, or an assistant attorney general authorized to represent DSHS in an administrative hearing. DSHS representatives include, but are not limited to, claims officers and fair hearing coordinators.

"Hearing" means a proceeding before OAH that gives a party an opportunity to be heard in disputes about DSHS programs. For purposes of this chapter, hearings include administrative hearings, adjudicative proceedings, and any other similar term referenced under chapter 34.05 RCW, the Administrative Procedure Act, Title 388 of the Washington Administrative Code, chapter 10-08 WAC, or other law.

"Mail" means placing the document in the mail with the proper postage.

"OAH" means the office of administrative hearings, a separate state agency from DSHS.

"Party" means a person or entity:

(1) Named in a DSHS action;

(2) To whom a DSHS action is directed; or

(3) Allowed to participate in a hearing to protect an interest as authorized by law or rule.

(4) DSHS is also a party.

"Prehearing conference" means a proceeding scheduled and conducted by an ALJ in preparation for a hearing.

"Prehearing meeting" means an informal voluntary meeting that may be held before any prehearing conference or hearing.

"Record" means the official documentation of the hearing process. The record includes tape recordings or transcripts, admitted exhibits, decisions, briefs, notices, orders, and other filed documents.

"Review judge" means an attorney employed by the DSHS board of appeals (BOA) who reviews decisions made by an ALJ and makes a final agency decision. The review judge is the reviewing officer in RCW 34.05.464.

"Rule" means a state regulation. Rules are found in the Washington Administrative Code (WAC).

"Stay" means an order temporarily halting the DSHS decision or action.

"You" means any individual or entity that has a right to be involved with the DSHS hearing process, which includes a party or a party's representative. "You" does not include DSHS or its representative.

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NEW SECTION
WAC 388-02-0015
How do the terms in the Administrative Procedure Act (APA) compare to this chapter?

To improve clarity and understanding, the rules in this chapter may use different words than the APA or the model rules. Following is a list of terms used in those laws and the terms as used in these rules:

Chapter 34.05 RCW

Chapter 10.08 WAC

Chapter 388-02 WAC

Adjudicative proceeding Different terms are used to refer to different stages of the hearing process, and may include prehearing meeting, prehearing conference, hearing, review, reconsideration and the entire hearing process
Agency DSHS
Application for adjudicative proceeding Request a hearing
Enter Make, send
Initial order Hearing decision or order
Presiding officer ALJ or review judge
Reviewing officer Review judge

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NEW SECTION
WAC 388-02-0020
What does good cause mean?

(1) Good cause is a substantial reason or legal justification for failing to appear, to act, or respond to an action. To show good cause, the ALJ must find that a party had a good reason for what they did or did not do, using the provisions of Superior Court Civil Rule 60 as a guideline.

(2) Good cause may include, but is not limited to, the following examples.

(a) You ignored a notice because you were in the hospital or were otherwise prevented from responding; or

(b) You could not respond to the notice because it was written in a language that you did not understand.

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ADDRESSES
NEW SECTION
WAC 388-02-0025
Where is the office of administrative hearings located?

(1)(a) The office of administrative hearings (OAH) headquarters location is:

Office of Administrative Hearings

919 Lakeridge Way SW

P.O. Box 42488

Olympia WA 98504-2488

(360) 664-8717

(360) 664-8721 (FAX)

(b) The headquarters office is open from 8:00 am to 5:00 p.m. Mondays through Friday, except legal holidays.

(2) OAH field offices are at the following locations:

Olympia

Office of Administrative Hearings - SHS

2420 Bristol Court SW, 3rd Floor

PO Box 42489

Olympia, WA 98504-2489

(360) 753-2531

1-800-583-8271

FAX: (360) 586-6563

Seattle

Office of Administrative Hearings - SHS

1904 3rd Ave., Suite 722

Seattle, WA 98101-1100

(206) 464-6322

1-800-583-8270

FAX: (206) 587-5136

Everett

Office of Administrative Hearings - SHS

2722 Colby, Suite 610

Everett, WA 98201-3571

(425) 339-1921

1-800-583-8261

FAX: (425) 339-3907

Vancouver

Office of Administrative Hearings - SHS

800 Franklin Street, 1st Floor

Vancouver, WA 98660

(360) 690-7189

1-800-243-3451

FAX: (360) 696-6255

Spokane

Office of Administrative Hearings - SHS

136 S. Arthur St.

Spokane, WA 99202-2254

1-800-366-0955

FAX: (509) 533-2473

Yakima

Office of Administrative Hearings - SHS

32 N 3rd Street, Suite 320

Yakima, WA 98901-2730

(509) 575-2147

1-800-843-3491

FAX (509) 454-7281

(3) You should contact the Olympia field office under, subsection (2), if you do not know the correct field office.

(4) You can obtain further hearing information at the OAH website: www.oah.wa.gov

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NEW SECTION
WAC 388-02-0030
Where is the board of appeals located?

(1) The mailing address of the DSHS board of appeals (BOA) is:

DSHS Board of Appeals

PO Box 45803

Olympia, WA 98504-5803;

(2) The general telephone numbers of the BOA are:

(360) 664-6100

1-877-351-0002 (toll free) (360) 664-6178 (TTD)

(360) 664-6187 (FAX);

(3) The physical location of the DSHS Board of Appeals (BOA) is:

Blake Office Bldg. East, 2nd Floor

4500 10th Ave. SE

Lacey, WA 98503

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DEADLINES
NEW SECTION
WAC 388-02-0035
How are days counted when calculating deadlines for the hearing process?

(1) When counting days to find out when a hearing deadline ends under DSHS rules or statutes:

(a) Do not include the day of the action, notice, or order. For example, if a hearing decision is mailed on Tuesday and you have twenty-one days to request a review, start counting the days with Wednesday.

(b) If the last day of the period ends on a Saturday, Sunday or legal holiday, the deadline is the next business day.

(c) For periods of seven days or less, count only business days. For example, if you have seven days to respond to a review request that was mailed to you on Friday, May 10, the response period ends on Tuesday, May 21.

(d) For periods over seven days, count every day, including Saturdays, Sundays, and legal holidays.

(2) The deadline ends at 5:00 p.m. on the last day.

(3) If you miss a deadline, you may lose your right to a hearing or appeal of a decision.

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FILING AND SERVING PAPERS
NEW SECTION
WAC 388-02-0040
How do parties send documents?

(1) When the rules in this chapter or in other law asks a party to send copies of documents to other parties, the party must mail or deliver copies to the DSHS representative and to all other parties or their representatives.

(2) When sending documents to OAH or BOA, you must mail or deliver the documents to one of the locations listed in WAC 388-02-0025(2) for OAH or in WAC 388-02-0030 for BOA.

(3) When sending documents to your assigned field office, you may use the address listed at the top of your notice of hearing. If a field office has not been assigned, all written communication about your hearing must be sent to the OAH Olympia field office which sends the communication to the correct office.

(4) Documents may be sent by giving them to someone in person, placing them in the mail with proper postage, or by FAX or e-mail if the party mails a copy on the same day.

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NEW SECTION
WAC 388-02-0045
What is service?

Service gives the party notice. When a document is given to the party, the party is considered served with official notice of the contents of the document.

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NEW SECTION
WAC 388-02-0050
How does a party serve someone?

Unless otherwise stated in law, a party may serve someone by:

(1) Personal service (hand delivery);

(2) First class, registered, or certified mail;

(3) Fax if the party mails a copy of the document the same day;

(4) Commercial delivery service; or

(5) Legal messenger service.

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NEW SECTION
WAC 388-02-0055
When must a party serve someone?

A party must serve all other parties and their representatives whenever the party files a pleading, brief or other document with OAH or BOA, or when required by law.

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NEW SECTION
WAC 388-02-0060
When is service complete?

Service is complete when:

(1) Personal service is made;

(2) Mail is properly stamped, addressed and deposited in the United States mail;

(3) FAX produces proof of transmission;

(4) A parcel is delivered to a commercial delivery service with charges prepaid; or

(5) A parcel is delivered to a legal messenger service with charges prepaid.

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NEW SECTION
WAC 388-02-0065
How does a party prove service?

A party may prove service by providing any of the following:

(1) A sworn statement;

(2) The certified mail receipt signed by the recipient;

(3) An affidavit or certificate of mailing;

(4) A signed receipt from the person who accepted the commercial delivery service or legal messenger service package; or

(5) Proof of FAX transmission.

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NEW SECTION
WAC 388-02-0070
What is filing?

(1) Filing is the act of delivering documents to OAH or BOA.

(2) The date of filing is the date documents are received by OAH or BOA.

(3) Filing is complete when the documents are received by OAH or BOA during office hours.

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NEW SECTION
WAC 388-02-0075
How does a party file documents?

(1) A party may file documents by delivering them to OAH or BOA by:

(a) Personal service (hand delivery);

(b) First class, registered, or certified mail;

(c) FAX transmission if the party mails a copy of the document the same day;

(d) Commercial delivery service; or

(e) Legal messenger service.

(2) A party cannot file documents by e-mail.

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RESOLUTION OF DISPUTES
NEW SECTION
WAC 388-02-0080
What are your options for resolving a dispute with DSHS?

(1) If you disagree with a DSHS decision or action, you have several options for resolving your dispute, which may include the following:

(a) Any special prehearing alternative or administrative process offered by the program;

(b) Prehearing meeting;

(c) Prehearing conference; and

(d) Hearing.

(2) Because you have a limited time to request a hearing, you must request a hearing within the deadline on the notice of DSHS action to preserve your hearing right.

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HEARING RIGHTS AND REQUESTS
NEW SECTION
WAC 388-02-0085
Do you have a right to a hearing?

(1) You have a right to a hearing only if a law or DSHS rule gives you that right. If you are not sure, you should request a hearing to protect your right.

(2) Some DSHS programs may require you to go through an informal administrative process before you can request or have a hearing. The notice of DSHS action sent to you should include information about this requirement if it applies.

(3) You have a limited time to request a hearing. The deadline for your request varies by the DSHS program involved. You should submit your request right away to protect your right to a hearing, even if you are also trying to resolve your dispute informally.

(4) If you request a hearing, one is scheduled.

(5) If DSHS or the ALJ questions your right to a hearing, the ALJ decides whether you have that right.

(6) If the ALJ decides you do not have a right to a hearing, your request is dismissed.

(7) If the ALJ decides you do have a right to a hearing, the hearing proceeds.

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NEW SECTION
WAC 388-02-0090
Who may request a hearing?

Either you or your representative may request a hearing.

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NEW SECTION
WAC 388-02-0095
What if you have questions about requesting a hearing?

If you have questions about how, when, and where to request a hearing, you should:

(1) Contact the DSHS program involved, OAH, or BOA;

(2) Review the notice sent to you of the DSHS action or decision; or

(3) Review the applicable law or DSHS rule.

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NEW SECTION
WAC 388-02-0100
How do you request a hearing?

(1) You may request a hearing in writing or orally, depending upon which program is involved. The DSHS notice and applicable laws and rules should tell you whether the request must be in writing or may be made orally.

(2) If you are allowed to make an oral request, you may do so to a DSHS or OAH employee in person or by telephone or voice mail.

(3) You may send a written request by mail, delivery service, personal service, or by FAX if you mail a copy the same day. You should send written requests to the location on the notice or to OAH at the location specified in WAC 388-02-0025(2).

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NEW SECTION
WAC 388-02-0105
What information do you give when requesting a hearing?

(1) Your hearing request must contain enough information to identify you and the DSHS action. You should include:

(a) Your name, address, and telephone number;

(b) A brief explanation of why you disagree with the DSHS action;

(c) Your client identification or case number, contract number, or any other information that identifies your case or the program involved; and

(d) Any assistance you need, including a foreign or sign language interpreter or any other accommodation for a disability.

(2) You should also refer to a program's specific rules or the notice to see if additional information is required in your request.

(3) OAH may not be able to process your hearing request if it cannot identify or locate you and determine the DSHS action involved.

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NEW SECTION
WAC 388-02-0110
What happens after you request a hearing?

(1) After you request a hearing, OAH sends the parties a notice containing the hearing date, time, and place. This document is called the notice of hearing. For certain types of hearings, the parties may receive a written notice of a prehearing conference.

(2) Before your hearing is held:

(a) DSHS may contact you and try to resolve your dispute; and

(b) You are encouraged to contact DSHS and try to resolve your dispute.

(3) If you do not appear for your hearing, an ALJ may enter an order of default or an order dismissing your hearing according to WAC 388-02-0285.

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NEW SECTION
WAC 388-02-0115
May you withdraw your hearing request?

(1) You may withdraw your hearing request for any reason and at any time by contacting DSHS or OAH in writing or orally with the ALJ and the other parties. After your request for withdrawal is received, your hearing is cancelled and OAH sends an order dismissing the hearing. If you withdraw your request you may not be able to request another hearing on the same DSHS action.

(2) If you withdraw your hearing request, you may only set aside the dismissal according to WAC 388-02-0290.

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INTERPRETERS
NEW SECTION
WAC 388-02-0120
Do you have the right to an interpreter in the hearing process?

If you need an interpreter because you or any of your witnesses are a person with limited English proficiency, OAH will provide an interpreter at no cost to you.

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NEW SECTION
WAC 388-02-0125
What definitions apply to limited English proficient (LEP) parties?

The following definitions apply to LEP parties:

"Hearing impaired person" means a person who, because of a hearing or speech impairment, cannot readily speak, understand or communicate in spoken language.

"Intermediary interpreter" means an interpreter who:

(1) Is a certified deaf interpreter (CDI); and

(2) Is able to assist in providing an accurate interpretation between spoken and sign language or between types of sign language by acting as an intermediary between a hearing impaired person and a qualified interpreter.

"Limited English proficient (LEP)" includes limited English speaking persons or other persons unable to communicate in spoken English because of a hearing impairment.

"Limited English-speaking (LES) person" means a person who, because of non-English speaking cultural background or disability, cannot readily speak or understand the English language.

"Qualified interpreter" includes qualified interpreters for a limited English-speaking person or a person with a hearing impairment.

"Qualified interpreter for a limited English- speaking person" means a person who is readily able to interpret or translate spoken and written English communications to and from a limited English speaking person. If an interpreter is court certified, the interpreter is considered qualified.

"Qualified interpreter for a person with a hearing impairment" means a visual language interpreter who is certified by the registry of interpreters for the deaf or National Association of the Deaf and is readily able to interpret or translate spoken communications to and from a hearing impaired person.

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NEW SECTION
WAC 388-02-0130
What requirements apply to notices for limited English speaking parties?

If OAH is notified that you are a limited English speaking person, all hearing notices, decisions and orders for you must:

(1) Be written in your primary language; or

(2) Include a statement in your primary language:

(a) Indicating the importance of the notice; and

(b) Telling you how to get help in understanding the notice and responding to it.

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NEW SECTION
WAC 388-02-0135
What requirements apply to interpreters?

(1) OAH must provide a qualified interpreter to assist any person who:

(a) Has limited English proficiency; and

(b) Is a party or witness in a hearing.

(2) OAH may hire or contract with persons to interpret at hearings.

(3) Relatives of any party and DSHS employees may not be used as interpreters.

(4) The ALJ must determine, at the beginning of the hearing, if an interpreter can accurately interpret all communication for the person requesting the service. To do so, the ALJ considers the interpreter's:

(a) Ability to meet the needs of the hearing impaired person or limited English speaking person;

(b) Education, certification and experience;

(c) Understanding of the basic vocabulary and procedures involved in the hearing; and

(d) Ability to be impartial.

(5) The parties or their representatives may question the interpreter's qualifications and ability to be impartial.

(6) If at any time before or during the hearing the interpreter does not provide accurate and effective communication, the ALJ must provide another interpreter.

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NEW SECTION
WAC 388-02-0140
May you waive interpreter services?

(1) If you are limited English proficient, you may ask to waive interpreter services.

(2) You must make your request in writing or through a qualified interpreter on the record.

(3) The ALJ must determine if your waiver has been knowingly and voluntarily made.

(4) You may withdraw your waiver at any time before or during the hearing.

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NEW SECTION
WAC 388-02-0145
What requirements apply to the use of interpreters?

(1) Interpreters must:

(a) Use the interpretive mode that the parties, the hearing impaired person the interpreter and the ALJ consider the most accurate and effective;

(b) Interpret statements made by the parties and the ALJ;

(c) Not disclose information about the hearing without the written consent of the parties; and

(d) Not comment on the hearing or give legal advice.

(2) The ALJ must allow enough time for all interpretations to be made and understood.

(3) The ALJ may video tape a hearing and use it as the official transcript for hearings involving a hearing impaired person.

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NEW SECTION
WAC 388-02-0150
What requirements apply to hearing decisions involving limited English speaking parties?

(1) When an interpreter is used at a hearing, the ALJ must explain that the decision is written in English but that a party using an interpreter may contact the interpreter for an oral translation of the decision at no cost to you.

(2) Interpreters must provide a telephone number where they can be reached. This number must be attached to any decision or order mailed to the parties.

(3) OAH or BOA must mail a copy of a decision or order to the interpreter for use in oral translation.

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REPRESENTATION DURING THE HEARING PROCESS
NEW SECTION
WAC 388-02-0155
Who represents you during the hearing process?

(1) You may represent yourself or have anyone represent you, except a DSHS employee.

(2) Your representative may be a friend, relative, community advocate, attorney, or paralegal.

(3) You should inform DSHS or OAH of your representatives name, address, and telephone number.

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NEW SECTION
WAC 388-02-0160
If a DSHS employee cannot represent you, can they assist you during the hearing process?

Although DSHS employees cannot represent you during the hearing process, they may assist you by:

(1) Acting as a witness;

(2) Referring you to community legal resources;

(3) Helping you get nonconfidential information; or

(4) Informing you about or providing copies of the relevant laws or rules.

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NEW SECTION
WAC 388-02-0165
What if you would like to be represented by an attorney but you cannot afford one?

(1) Neither DSHS nor OAH will pay for an attorney.

(2) If you want an attorney to represent you and cannot afford one, community resources may be available to assist you. These legal services may be free or available at a reduced cost. DSHS or OAH can tell you who to contact for legal assistance.

(3) Information about legal assistance can also be found at www.oah.wa.gov.

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NEW SECTION
WAC 388-02-0170
Who represents DSHS during the hearing?

(1) A DSHS employee, DSHS contractor, or the office of the attorney general represents DSHS during the hearing. The DSHS representative may or may not be an attorney.

(2) An ALJ is independent and does not represent DSHS or any other party.

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PREHEARING MEETING WITH A DSHS REPRESENTATIVE
NEW SECTION
WAC 388-02-0175
What is a prehearing meeting?

(1) A prehearing meeting is an informal meeting with a DSHS representative that may be held before any prehearing conference or hearing.

(2) A DSHS representative may contact you before the scheduled hearing to arrange a prehearing meeting. You may also contact DSHS to request a prehearing meeting.

(3) A prehearing meeting is voluntary. You are not required to request one and you are not required to participate in one.

(4) The prehearing meeting includes you and/or your representative, the DSHS representative, and any other party. An ALJ does not attend a prehearing meeting.

(5) The prehearing meeting gives the parties an opportunity to:

(a) Clarify issues;

(b) Exchange documents and witness statements;

(c) Resolve issues through agreement or withdrawal; and

(d) Ask questions about the hearing process and the laws and rules that apply.

(6) A prehearing meeting may be held or information exchanged:

(a) In person;

(b) By telephone conference call;

(c) Through correspondence; or

(d) Any combination of the above that is agreeable to the parties.

(7) If a prehearing conference is required by the program or rule, a prehearing meeting may not be an option available to you.

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NEW SECTION
WAC 388-02-0180
What happens during a prehearing meeting?

During a prehearing meeting:

(1) A DSHS representative:

(a) Explains the role of the DSHS representative in the hearing process;

(b) Explains how a hearing is conducted and the relevant laws and rules that apply;

(c) Explains your right to representation during the hearing;

(d) Responds to your questions about the hearing process;

(e) Identifies accommodation and safety issues;

(f) Distributes copies of the DSHS documents to be presented during the hearing;

(g) Provides, upon request, copies of relevant laws and rules;

(h) Identifies additional documents or evidence you may want or be required to present during the hearing;

(i) Tells you how to obtain documents from your file;

(j) Clarifies the issues; and

(k) Attempts to settle the dispute, if possible.

(2) You should explain your position and provide documents that relate to your case. You also have the right to consult legal resources.

(3) You and the DSHS representative may enter into written agreements or stipulations, including agreements that settle your dispute.

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NEW SECTION
WAC 388-02-0185
What happens after a prehearing meeting?

(1) If you and DSHS resolve the dispute during the prehearing meeting and put it in writing or present the agreement to an ALJ, your agreement may be legally enforceable.

(2) Any agreements or stipulations made at the prehearing meeting must be presented to an ALJ before or during the hearing, if you want the ALJ to consider the agreement.

(3) If all of your issues are not resolved in the prehearing meeting, you may request a prehearing conference before an ALJ or go to your scheduled hearing. The ALJ may also order a prehearing conference.

(4) You may withdraw your hearing request at any time if DSHS agrees to some action that resolves your dispute, or for any other reason. If you withdraw your hearing request, the hearing is not held and the ALJ sends a written order of dismissal.

[]


NEW SECTION
WAC 388-02-0190
What happens if you do not participate in a prehearing meeting?

You are not required to participate in a prehearing meeting. If you do not participate, it does not affect your right to a hearing.

[]

PREHEARING CONFERENCE WITH AN ADMINISTRATIVE LAW JUDGE
NEW SECTION
WAC 388-02-0195
What is a prehearing conference?

(1) A prehearing conference is a formal meeting conducted by an ALJ to prepare for a hearing.

(2) Either the ALJ or a party may request a prehearing conference, but the ALJ decides whether to hold a prehearing conference. OAH sends notice of the conference to all parties.

(3) An ALJ may conduct the conference in person, by telephone conference call, by electronic means, or in any other manner acceptable to the parties. Your attendance is mandatory.

(4) A party may lose the right to participate during the hearing if that party does not attend the prehearing conference.

[]


NEW SECTION
WAC 388-02-0200
What happens during a prehearing conference?

During a prehearing conference the parties and the ALJ may:

(1) Simplify or clarify the issues to be decided during the hearing;

(2) Agree to the date, time and place of the hearing;

(3) Identify accommodation and safety issues:

(4) Agree to postpone the hearing;

(5) Allow the parties to make changes in their own documents, including the DSHS notice or the hearing request;

(6) Agree to facts and documents to be entered during the hearing;

(7) Set a deadline to exchange names and phone numbers of witnesses and documents before the hearing;

(8) Schedule additional prehearing conferences;

(9) Resolve the dispute;

(10) Consider granting a stay if authorized by law or DSHS rule; or

(11) Determine any other procedural issues raised by the parties.

[]


NEW SECTION
WAC 388-02-0205
What happens after a prehearing conference?

(1) After the conference ends, the ALJ must send a prehearing order describing:

(a) The actions taken;

(b) Any changes to the documents; and

(c) Any agreements reached.

(2) A party may object to the prehearing order by notifying the ALJ in writing within ten days after the mailing date of the order. The ALJ must issue a ruling on the objection.

(3) If no objection is made to the prehearing order, the order determines how the hearing is conducted, including whether the hearing will be in person or held by telephone conference or other means, unless the ALJ changes the order for good cause.

(4) The ALJ may take further appropriate actions to address other concerns.

[]


NEW SECTION
WAC 388-02-0210
What happens if a party does not attend a prehearing conference?

(1) All parties are required to attend a prehearing conference.

(2) If you do not attend, you may not be allowed to participate in the hearing. The ALJ may dismiss your hearing request or enter an order of default against you.

(3) If DSHS does not attend, the ALJ may dismiss or reverse the action DSHS took against you.

[]

ADMINISTRATIVE LAW JUDGES
NEW SECTION
WAC 388-02-0215
What is the authority of the ALJ?

(1) An ALJ must hear and decide the issues de novo (anew) based on what is presented during the hearing.

(2) As needed, an 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) An ALJ administers oaths or affirmations and takes testimony.

(4) A review judge has the same authority as an ALJ when presiding at a hearing.

[]


NEW SECTION
WAC 388-02-0220
What rules and laws must an ALJ and review judge apply when making a decision?

(1) ALJs and review judges must first apply the DSHS rules adopted in the Washington Administrative Code.

(2) If no DSHS rule applies, the ALJ or review judge must decide the issue according to the best legal authority and reasoning available, including federal and Washington state constitutions, statutes, regulations, and court decisions.

[]


NEW SECTION
WAC 388-02-0225
May an ALJ or review judge decide that a DSHS rule is invalid?

(1) Neither an ALJ nor a review judge may decide that a DSHS rule is invalid or unenforceable. Only a court may decide this issue.

(2) If the validity of a DSHS rule is raised during the hearing, the ALJ or review judge may allow argument for court review.

[]


NEW SECTION
WAC 388-02-0230
When is the ALJ assigned to the hearing?

OAH assigns an ALJ at least five business days before the hearing. A party may ask which ALJ is assigned to the hearing by calling or writing the OAH field office listed on the notice of hearing.

[]


NEW SECTION
WAC 388-02-0235
May a party request a different judge?

A party may file a motion of prejudice against an ALJ under RCW 34.12.050. A party may also request that an ALJ or review judge be disqualified under RCW 34.05.425.

[]


NEW SECTION
WAC 388-02-0240
How does a party file a motion of prejudice?

(1) A party may request a different ALJ by sending a written motion of prejudice at least three business days before the hearing, or before the ALJ rules on a discretionary issue in the case. A motion of prejudice must include an affidavit or statement that a party does not believe that the ALJ can hear the case fairly.

(2) The party must send the request to the OAH field office where the ALJ works.

(3) The first timely request for a different ALJ is automatically granted. Any later request may be granted or denied by the chief ALJ or a designee.

[]


NEW SECTION
WAC 388-02-0245
May an ALJ or review judge be disqualified?

(1) An ALJ or review judge may be disqualified for bias, prejudice, or conflict of interest, or if one of the parties or a party's representative has an ex parte contact with the ALJ or review judge.

(2) Ex parte contact means a written or oral communication with the ALJ or review judge about something related to the hearing when the other parties are not present. Procedural questions are not considered an ex parte contact. Examples of procedural questions include clarifying the hearing date, time, or location or asking for directions to the hearing location.

(3) To ask to disqualify an ALJ or review judge a party must send a written petition for disqualification. A petition for disqualification is a written explanation to request assignment of a different ALJ or review judge. A party must promptly make the petition upon discovery of possible bias, conflict of interest or an ex parte contact.

(4) A party must send or deliver the petition to the ALJ or review judge assigned to the case. That ALJ or review judge must decide whether to grant or deny the petition and must state the facts and reasons for the decision.

[]

NOTICES
NEW SECTION
WAC 388-02-0250
What happens after you request a hearing?

(1) After you request a hearing, OAH sends a notice of hearing to all parties and their representatives. OAH sends the notice of hearing at least seven business days before the hearing date.

(2) OAH may schedule a prehearing conference. OAH sends a notice of prehearing conference at least seven business days before the prehearing conference date.

(3) You may ask for a prehearing meeting even after you have requested a hearing.

[]


NEW SECTION
WAC 388-02-0255
What information must OAH include in the notice of hearing?

(1) A notice of hearing is a written notice that must include:

(a) The names of all parties who receive the notice and, if known, the names and addresses of their representatives;

(b) The name, mailing address, and telephone number of the ALJ, if known;

(c) The date, time, place, and nature of the hearing;

(d) The legal authority and jurisdiction for the hearing; and

(e) The date of the hearing request.

(2) OAH also sends you information with your notice of hearing telling you the following:

(a) If you fail to attend or participate in a prehearing conference or a hearing, you may lose your right to a hearing. Then the ALJ may send:

(i) An order of default against you; or

(ii) An order dismissing the hearing.

(b) If you need a qualified interpreter because you or any of your witnesses are persons with limited English proficiency, OAH will provide an interpreter at no cost to you.

(c) If the hearing is to be held by telephone or in person, and how to request a change in the way it is held.

(d) How to indicate any special needs for yourself or your witnesses, including the need for an interpreter in a primary language or for sensory impairments.

(e) How to contact OAH if a party has a safety concern.

[]


NEW SECTION
WAC 388-02-0260
May DSHS amend a notice?

(1) The ALJ must allow DSHS to amend (change) the notice of a DSHS action before or during the hearing to match the evidence and facts.

(2) DSHS must put the change in writing and give a copy to the ALJ and the other parties.

(3) The ALJ must offer to continue or postpone the hearing to give the parties more time to prepare or present evidence or argument if there is a significant change from the earlier DSHS notice.

(4) If the ALJ grants a continuance, OAH must send, a new hearing notice at least seven business days before the hearing date.

[]


NEW SECTION
WAC 388-02-0265
May you amend your hearing request?

(1) The ALJ may allow you to amend your hearing request before or during the hearing.

(2) The ALJ may postpone the hearing to give the other parties more time to prepare or present evidence or argument because of a significant change in the hearing request.

(3) If the ALJ grants a continuance, OAH must send a new hearing notice at least seven business days before the hearing date.

[]


NEW SECTION
WAC 388-02-0270
Must you tell DSHS and OAH when your mailing address changes?

(1) You must tell DSHS and OAH, as soon as possible, when your mailing address changes.

(2) If you do not notify DSHS and OAH of a change in your mailing address and they continue to send notices and other important papers to your last known mailing address, the ALJ may assume that you received the documents.

[]

CONTINUANCES
NEW SECTION
WAC 388-02-0275
What is a continuance?

A continuance is a change in the date or time of a prehearing conference, hearing or the deadline for other action.

[]


NEW SECTION
WAC 388-02-0280
Who may request a continuance?

(1) Any party may request a continuance either orally or in writing.

(2) Before contacting the ALJ to request a continuance, a party should contact the other parties, if possible, to find out if they will agree to a continuance. If you are unable to contact the parties, OAH or DSHS must assist you in contacting them.

(3) The party making the request for a continuance must let the ALJ know whether the other parties agreed to the continuance.

(a) If the parties agree to a continuance, the ALJ grants it unless the ALJ finds that good cause for a continuance does not exist.

(b) If the parties do not agree to a continuance, the ALJ sets a hearing to decide whether there is good cause to grant or deny the continuance.

(4) If a continuance is granted, OAH sends notice of the changed time and date of the hearing.

[]

DISMISSALS
NEW SECTION
WAC 388-02-0285
What is an order of dismissal?

(1) An order of dismissal is an order sent by the ALJ to end the hearing. The order is made because the party who requested the hearing withdrew the request, failed to appear, or refused to participate, resulting in a default.

(2) If your hearing is dismissed because you did not appear or refused to participate, the DSHS decision stands.

(3) If the hearing is dismissed due to a written agreement between the parties, the parties must follow the agreement.

[]


NEW SECTION
WAC 388-02-0290
If your hearing is dismissed, may you request another hearing?

(1) If the ALJ sends an order dismissing your hearing, you may ask that the ALJ vacate (set aside) the order of dismissal.

(2) If the order of dismissal is vacated, your hearing is reinstated, which means you get another opportunity to have a hearing on your initial request for hearing.

[]


NEW SECTION
WAC 388-02-0295
Where do you send a request to vacate an order of dismissal?

You must send your request to vacate an order of dismissal to BOA or OAH. You should specify in your request why the order of dismissal should be vacated. BOA forwards any request received to OAH to schedule a hearing. OAH sends you a notice of the hearing on the request to vacate the order of dismissal.

[]


NEW SECTION
WAC 388-02-0300
What is the deadline for vacating an order of dismissal?

(1) You must send your request to vacate an order to OAH or BOA twenty-one calendar days after the date the order of dismissal was mailed to you. If no request is received within that deadline, the dismissal order becomes a final order.

(2) You may make a late request to vacate the order of dismissal for up to one year after it was mailed but you must show good cause according to WAC 388-02-0020 for the late request to be accepted and the dismissal to be vacated.

(3) If you ask to vacate more than one year after the order was mailed, the ALJ may vacate the order of dismissal if the DSHS representative and any other party agrees to waive (excuse) the deadline.

[]


NEW SECTION
WAC 388-02-0305
How does an ALJ vacate an order of dismissal?

(1) If your request was received more than twenty-one days, but less than one year after the dismissal order was mailed, the ALJ first must decide if you have good cause according to WAC 388-02-0020.

(2) If your request was timely or you show good cause for missing the deadline, the ALJ will receive evidence and argument at a hearing from the parties on whether the order of dismissal should be vacated.

(3) The ALJ vacates an order of dismissal and reinstates the hearing if you show good cause or if the DSHS representative agrees to waive the deadline. You will then be allowed to present your case about your original request for hearing, either at the same time or at a later date if a continuance is granted.

[]

STAYS
NEW SECTION
WAC 388-02-0310
May a party request a stay of DSHS action?

A party may request that an ALJ or review judge stay (stop) a DSHS action until there is a decision entered by the ALJ or review judge. An ALJ or review judge decides whether to grant the stay.

[]

SUBPOENAS
NEW SECTION
WAC 388-02-0315
May a party require witnesses to testify or provide documents?

A party may require witnesses to testify or provide documents by issuing a subpoena. A subpoena is an order to appear at a certain time and place to give testimony, or to provide books, documents, or other items.

[]


NEW SECTION
WAC 388-02-0320
Who may prepare a subpoena?

(1) ALJs, DSHS, and attorneys for the parties may prepare subpoenas. If an attorney does not represent you, you may ask the ALJ to prepare a subpoena on your behalf. The ALJ may schedule a hearing to decide whether to issue a subpoena.

(2) An ALJ may deny a request for a subpoena. For example, an ALJ may deny a request for a subpoena when the ALJ determines that a witness has no actual knowledge regarding the facts or that the documents are not relevant.

[]


NEW SECTION
WAC 388-02-0325
How is a subpoena served?

(1) Any person who is at least eighteen years old and not a party to the hearing may serve a subpoena.

(2) Service of a subpoena is complete when the server:

(a) Gives the witness a copy of the subpoena; or

(b) Leaves a copy at the residence of the witness with a person over the age of eighteen.

(3) To prove that a subpoena was served on a witness, the person serving the subpoena must sign a written, dated statement including:

(a) Who was served with the subpoena;

(b) When the subpoena was served;

(c) Where the subpoena was served; and

(d) The name, age, and address of the person who served the subpoena.

[]


NEW SECTION
WAC 388-02-0330
May the ALJ quash a subpoena?

(1) A party may request that an ALJ quash (set aside) or change the subpoena request at any time before the deadline given in the subpoena.

(2) An ALJ may set aside or change a subpoena if it is unreasonable.

(3) Witnesses with safety or accommodation concerns should contact OAH.

[]


NEW SECTION
WAC 388-02-0335
Do you have to pay for a subpoena?

There is no cost to prepare a subpoena, but you may have to pay for:

(1) Serving a subpoena;

(2) Complying with a subpoena; and

(3) Witness fees according to RCW 34.05.446(7).

[]

HEARING METHODS
NEW SECTION
WAC 388-02-0340
How is your hearing held?

(1) Hearings may be held in person or by telephone conference.

(2) An in-person hearing is where:

(a) The parties appear face-to-face with the ALJ; or

(b) The parties appear by video conference.

(3) Whether a hearing is held in person or by telephone conference, the parties have the right to see all documents, hear all testimony and question all witnesses.

(4) Parties or witnesses may appear in person or by telephone conference at the discretion of the ALJ.

[]


NEW SECTION
WAC 388-02-0345
Is an ALJ present at your hearing?

(1) If your hearing is scheduled as an in-person hearing, an ALJ is physically or visually present.

(2) If your hearing is scheduled as a telephone conference, an ALJ is present by telephone.

[]


NEW SECTION
WAC 388-02-0350
Is your hearing recorded?

An ALJ must tape record or provide a record or transcript of the hearing.

[]


NEW SECTION
WAC 388-02-0355
Who may attend your hearing?

(1) All parties and their representatives may attend the hearing.

(2) Witnesses may be excluded from the hearing if the ALJ finds good cause.

(3) The ALJ may also exclude other persons from all or part of the hearing.

[]


NEW SECTION
WAC 388-02-0360
May a party convert how a hearing is held?

(1) The parties have the right to request that:

(a) A hearing be converted (changed) to an in-person hearing or a telephone conference; or

(b) A witness appear in person or by telephone conference. OAH must advise you of the right to request a change in how a witness appears.

(2) In all DSHS cases, except public assistance cases, a party requesting a change in how a hearing is held must show good cause. A party must also show good cause to change the way a witness appears (in-person or by telephone conference). Some examples of good cause are:

(a) A party does not speak or understand English well.

(b) A party wants to present a significant number of documents during the hearing.

(c) A party does not believe that one of the witnesses or another party is credible, and wants the ALJ to have the opportunity to see the testimony.

(d) A party has a disability or communication barrier that affects their ability to present their case.

(e) A party believes that the personal safety of someone involved in the hearing process is at risk.

(3) In public assistance cases, a party has the right to request that a hearing be changed without showing good cause to the ALJ. Public assistance programs include:

(a) Temporary assistance for needy families (TANF);

(b) General or medical assistance;

(c) Food stamps; and

(d) Refugee assistance.

[]


NEW SECTION
WAC 388-02-0365
How does a party convert how a hearing is held or how the witnesses or parties appear?

(1) If a party wants to convert the hearing or change how their witnesses or other parties appear, the party must contact OAH to request the change.

(2) The ALJ may schedule a prehearing conference to determine if the request should be granted.

(3) If the ALJ grants the request, the ALJ reschedules the hearing or changes how the witness or party appears.

(4) If the ALJ denies the request, the ALJ must issue a written order that includes findings of fact supporting why the request was denied.

[]


NEW SECTION
WAC 388-02-0370
How are documents submitted for a telephone conference?

(1) When a hearing is conducted by telephone, an ALJ may order the parties to provide the hearing documents at least five days before the hearing, so all parties have an opportunity to view them during the hearing.

(2) DSHS may be able to help you copy and send your documents to the ALJ and any other parties.

[]


NEW SECTION
WAC 388-02-0375
What happens at your hearing?

At your hearing:

(1) The ALJ:

(a) Explains your rights;

(b) Marks and admits or rejects exhibits;

(c) Ensures that a record is made;

(d) Explains that a decision is mailed after the hearing;

(e) Notifies the parties of appeal rights;

(f) May keep the record open for a time after the hearing if needed to receive more evidence or argument; and

(g) May take actions as authorized according to WAC 388-02-0215.

(2) The parties may:

(a) Make opening statements to explain the issues;

(b) Offer evidence to prove their positions, including oral or written statements of witnesses;

(c) Question the witnesses presented by the other parties; and

(d) Give closing arguments about what the evidence shows and what laws apply.

(3) At the end of the hearing if the ALJ does not allow more time to send in evidence, the record is closed.

[]


NEW SECTION
WAC 388-02-0380
What is a group hearing?

(1) A group hearing may be held when two or more parties request a hearing about similar issues.

(2) Hearings may be combined at the request of the parties or the ALJ.

(3) All parties participating in a group hearing may have their own representative.

[]


NEW SECTION
WAC 388-02-0385
May a party withdraw from a group hearing?

(1) A party may withdraw from a group hearing by asking the ALJ for a separate hearing.

(2) If a party asks to withdraw from a group hearing before the ALJ makes a discretionary ruling or the hearing begins, the ALJ must give the party a separate hearing.

(3) If a party later shows good cause, the ALJ may give the party a separate hearing at any time during the hearing process.

[]

EVIDENCE
NEW SECTION
WAC 388-02-0390
What is evidence?

(1) Evidence includes documents, objects, and testimony of witnesses that parties give during the hearing to help prove their positions.

(2) Evidence may be all or parts of original documents or copies of the originals.

(3) Parties may offer statements signed by a witness under oath or affirmation as evidence, if the witness cannot appear.

(4) Testimony given with the opportunity for cross-examination by the other parties may be given more weight by the ALJ.

[]


NEW SECTION
WAC 388-02-0395
When may the parties bring in evidence?

(1) The parties may bring evidence to any prehearing meeting, prehearing conference, or hearing, or may send in evidence before these events.

(2) The ALJ may set a deadline before the hearing for the parties to provide proposed exhibits and names of witnesses. If the parties miss the deadline, the ALJ may refuse to admit the evidence unless the parties show:

(a) They have good cause for missing the deadline; or

(b) That the other parties agree.

(3) If the ALJ gives the parties more time to submit evidence, the parties may send it in after the hearing. The ALJ may allow more time for the other parties to respond to the new evidence.

[]


NEW SECTION
WAC 388-02-0400
What evidence may the parties present during the hearing?

The parties may bring any documents and witnesses to the hearing to support their position. However, the following provisions apply:

(1) The other parties may object to the evidence and question the witnesses;

(2) The ALJ determines whether the evidence is admitted and what weight (importance) to give it;

(3) If the ALJ does not admit the evidence the parties may make an offer of proof to show why the ALJ should admit it;

(4) To make an offer of proof a party presents evidence and argument on the record to show why the ALJ should consider the evidence; and

(5) The offer of proof preserves the argument for appeal.

[]


NEW SECTION
WAC 388-02-0405
What is a stipulation?

(1) A stipulation is an agreement among two or more parties that certain facts or evidence is correct or authentic.

(2) If an ALJ accepts a stipulation, the ALJ must enter it into the record.

(3) A stipulation may be made before or during the hearing.

[]


NEW SECTION
WAC 388-02-0410
After the parties agree to a stipulation, may they change or reject it?

(1) A party may change or reject a stipulation after it has been made.

(2) To change or reject a stipulation, a party must show the ALJ that:

(a) The party did not intend to make the stipulation or was mistaken when making it; and

(b) Changing or rejecting the stipulation does not harm the other parties.

[]


NEW SECTION
WAC 388-02-0415
What are proposed exhibits?

Proposed exhibits are documents or other objects that a party wants the ALJ to consider when reaching a decision. After the document or object is accepted by the ALJ, it is admitted and becomes an exhibit.

[]


NEW SECTION
WAC 388-02-0420
Do the parties mark and number their proposed exhibits?

(1) DSHS representatives must mark and number their proposed exhibits and provide copies to the other parties as far ahead of the hearing as possible.

(2) The ALJ may request that you mark and number your proposed exhibits before the hearing. You should bring enough copies of your proposed exhibits for all parties. If you do not bring enough copies, you must make your proposed exhibits available for copying.

(3) If you cannot afford to pay for copies of proposed exhibits, either DSHS or OAH must make the copies for you.

(4) The ALJ may require proof that you are unable to pay.

[]


NEW SECTION
WAC 388-02-0425
Who decides whether to admit proposed exhibits into the record?

(1) The ALJ decides whether or not to admit a proposed exhibit into the record and also determines the weight (importance) of the evidence.

(2) The ALJ admits proposed exhibits into the record by marking, listing, identifying, and admitting the proposed exhibits.

(3) The ALJ may also exclude proposed exhibits from the record.

(4) The ALJ must make rulings on the record to admit or exclude exhibits.

[]


NEW SECTION
WAC 388-02-0430
What may a party do if they disagree with an exhibit?

(1) A party may object to the authenticity or admissibility of any exhibit, or offer argument about how much weight the ALJ should give the exhibit.

(2) Even if a party agrees that a proposed exhibit is a true and authentic copy of a document, the agreement does not mean that a party agrees with:

(a) Everything in the exhibit or agrees that it should apply to the hearing;

(b) What the exhibit says; or

(c) How the ALJ should use the exhibit to make a decision.

[]


NEW SECTION
WAC 388-02-0435
When should an ALJ receive proposed exhibits for a telephone hearing?

(1) Parties should send their proposed exhibits to the ALJ and the other parties at least five days before the telephone hearing. In some cases, the ALJ may require that the parties send them earlier.

(2) Sending the proposed exhibits to the ALJ before the telephone hearing allows all parties to use them during the hearing.

(3) For a telephone hearing, DSHS may help you send copies of your proposed exhibits to the ALJ and the other parties if you cannot afford to do so.

[]


NEW SECTION
WAC 388-02-0440
What is judicial notice?

(1) Judicial notice is evidence that includes facts or standards that are generally recognized and accepted by judges, government agencies, or national associations.

(2) For example, an ALJ may take judicial notice of a calendar, a building code or a standard or practice.

[]


NEW SECTION
WAC 388-02-0445
How does the ALJ respond to requests to take judicial notice?

(1) The ALJ may consider and admit evidence by taking judicial notice.

(2) If a party requests judicial notice, or if the ALJ intends to take judicial notice, the ALJ may ask the party to provide a copy of the document that contains the information.

(3) If judicial notice has been requested, or if the ALJ intends to take judicial notice, the ALJ must tell the parties before or during the hearing.

(4) The ALJ must give the parties time to object to judicial notice evidence.

[]

WITNESSES
NEW SECTION
WAC 388-02-0450
What is a witness?

(1) A witness is any person who makes statements or gives testimony that becomes evidence in a hearing.

(2) One type of witness is an expert witness. An expert witness is qualified by knowledge, experience, and education to give opinions or evidence in a specialized area.

[]


NEW SECTION
WAC 388-02-0455
Who may be a witness?

(1) A witness may be:

(a) You or the DSHS representative; or

(b) Anyone you, the ALJ, or the DSHS representative asks to be a witness, including DSHS employees.

(2) The ALJ decides who may testify as a witness.

(3) Unless DSHS agrees, a former DSHS employee may not be an expert witness against DSHS if that employee was actively involved in the case while working for DSHS.

[]


NEW SECTION
WAC 388-02-0460
How do witnesses testify?

All witnesses:

(1) Must affirm or take an oath to testify truthfully during the hearing.

(2) May testify in person or by telephone.

(3) May request interpreters from OAH at no cost to you.

(4) May be subpoenaed and ordered to appear according to WAC 388-02-0315.

[]


NEW SECTION
WAC 388-02-0465
May the parties cross-examine a witness?

(1) The parties have the right to cross-examine (question) each witness.

(2) If a party has a representative, only the representative, and not the party, may question the witness.

(3) The ALJ may also question witnesses.

[]


NEW SECTION
WAC 388-02-0470
May witnesses refuse to answer questions?

Witnesses may refuse to answer questions. However, if a witness refuses to answer, the ALJ may reject all of the related testimony of that witness.

[]

PROOF
NEW SECTION
WAC 388-02-0475
What evidence does an ALJ consider?

(1) The ALJ may only consider admitted evidence to decide the case.

(2) Admission of evidence is based upon the reasonable person standard. This standard means evidence that a reasonable person would rely on in making a decision.

(3) The ALJ may admit and consider hearsay evidence. Hearsay is a statement made outside of the hearing used to prove the truth of what is in the statement. The ALJ may only base a finding on hearsay evidence if the ALJ finds that the parties had the opportunity to question or contradict it.

(4) The ALJ may reject evidence, if it:

(a) Is not relevant;

(b) Repeats evidence already admitted; or

(c) Is from a privileged communication protected by law.

(5) The ALJ must reject evidence if required by law.

(6) The ALJ decides:

(a) What evidence is more credible if evidence conflicts; and

(b) The weight given to the evidence.

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NEW SECTION
WAC 388-02-0480
What does burden of proof mean?

The party who has the burden of proof is the party who has the responsibility to provide evidence to persuade the ALJ that a position is correct.

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NEW SECTION
WAC 388-02-0485
What is the standard of proof?

Standard of proof refers to the amount of evidence needed to prove a party's position. Unless the rules or law states otherwise, the standard of proof in a hearing is a preponderance of the evidence. This standard means that it is more likely than not that something happened or exists.

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NEW SECTION
WAC 388-02-0490
How is a position proven at hearing?

The ALJ decides if a party has met the burden of proof. The ALJ writes a decision based on the evidence presented during the hearing and consistent with the law.

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NEW SECTION
WAC 388-02-0495
What is equitable estoppel?

(1) Equitable estoppel is a legal doctrine defined in case law that may prevent DSHS from taking some action against you, such as collecting an overpayment.

(2) There are five elements of equitable estoppel. The standard of proof is clear and convincing evidence. You must prove all of the following:

(a) DSHS made a statement or took action or failed to take action, which is inconsistent with a later claim or position by DSHS. For example, DSHS gave you money based on your application, then later tells you that you received an overpayment and wants you to pay the money back based on the same information.

(b) You relied on DSHS' original statement, action or failure to act. For example, you believed DSHS acted correctly when you received money.

(c) You will be injured to your detriment if DSHS is allowed to contradict the original statement, action or failure to act. For example, you did not seek help from health clinics or food banks because you were receiving benefits from DSHS and you would have been eligible for these other benefits.

(d) Equitable estoppel is needed to prevent a manifest injustice. For example, you cannot afford to repay the money to DSHS, and you gave DSHS timely and accurate information when required but did not know that DSHS made a mistake.

(e) The exercise of government functions is not impaired. For example, the overpayment was not your fault and it was caused solely by a DSHS mistake.

(3) If the ALJ concludes that you have proven all of the elements of equitable estoppel in subsection (2) of this section with clear and convincing evidence, DSHS is stopped or prevented from taking action or enforcing a claim against you.

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RECORD CLOSURE
NEW SECTION
WAC 388-02-0500
What may an ALJ do before the record is closed?

Before the record is closed, the ALJ may:

(1) Set another hearing date;

(2) Enter orders to address limited issues if needed before writing and mailing a hearing decision to resolve all issues in the proceeding; or

(3) Give the parties more time to send in exhibits or written argument.

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NEW SECTION
WAC 388-02-0505
When is the record closed?

The record is closed:

(1) At the end of the hearing if the ALJ does not allow more time to send in evidence or argument; or

(2) After the deadline for sending in evidence or argument is over.

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NEW SECTION
WAC 388-02-0510
What happens when the record is closed?

No more evidence may be taken without good cause after the record is closed.

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HEARING DECISIONS
NEW SECTION
WAC 388-02-0515
What happens after the record is closed?

(1) After the record is closed, the ALJ must write a hearing decision and send copies to the parties.

(2) The maximum time an ALJ has to send a decision is ninety calendar days after the record is closed, but many DSHS programs have earlier deadlines. Specific program rules may set the deadlines.

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NEW SECTION
WAC 388-02-0520
What information must the ALJ include in the decision?

The ALJ must include the following information in the decision:

(1) Identify the hearing decision as a DSHS case;

(2) List the name and docket number of the case and the names of all parties and representatives;

(3) Find the facts used to resolve the dispute based on the hearing record;

(4) Explain why evidence is credible when the facts or conduct of a witness is in question;

(5) State the law that applies to the dispute;

(6) Apply the law to the facts of the case in the conclusions of law;

(7) Discuss the reasons for the decision based on the facts and the law;

(8) State the result and remedy ordered;

(9) Explain how to request changes in the decision and the deadlines for requesting them;

(10) State the date the decision becomes final according to WAC 388-02-0525; and

(11) Include any other information required by law or DSHS program rules.

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NEW SECTION
WAC 388-02-0525
When does a decision become final?

(1) In most cases, if no one requests review, the hearing decision is final twenty-one calendar days after it is mailed.

(2) In food stamp cases involving a claim of an intentional program violation, the ALJ decision is preliminary and the review judge sends a final decision whether or not a party requests review.

(3) If a review request is dismissed, the hearing decision becomes final twenty-one calendar days after mailing the hearing decision.

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NEW SECTION
WAC 388-02-0530
What if a party disagrees with the decision?

(1) If a party disagrees with a decision because of a clerical error, the party may ask for a corrected decision from the ALJ.

(2) If a party disagrees with the hearing decision and wants it changed, the party must request review by BOA.

(3) If a party wants to stay the DSHS action until review is completed, the party must request a stay from a review judge.

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NEW SECTION
WAC 388-02-0535
Who may ask for a change in a decision?

Any party to a hearing may ask for a review or a corrected decision.

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CLERICAL ERRORS IN DECISIONS
NEW SECTION
WAC 388-02-0540
How are clerical errors corrected?

(1) A clerical error is a mistake that does not change the intent of the decision.

(2) The ALJ corrects clerical errors in the hearing decisions by issuing a second decision referred to as a corrected decision.

(3) Some examples of clerical error are:

(a) Missing or incorrect words or numbers;

(b) Dates inconsistent with the decision or evidence in the record such as using May 3, 1989, instead of May 3, 1998; or;

(c) Math errors when adding the total of an overpayment or a child support debt.

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NEW SECTION
WAC 388-02-0545
How does a party ask for a corrected decision?

(1) A party may ask for a corrected decision by calling or writing the OAH office that held your hearing.

(2) When asking for a corrected decision, please identify the clerical error you found.

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NEW SECTION
WAC 388-02-0550
How much time do the parties have to ask for a corrected decision?

The parties must ask OAH for a corrected decision on or before the tenth calendar day after the hearing decision was mailed.

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NEW SECTION
WAC 388-02-0555
What happens when a party requests a corrected decision?

(1) When a party requests a corrected decision, the ALJ must either:

(a) Send all parties a corrected decision; or

(b) Deny the request within three business days of receiving it.

(2) If the ALJ corrects the hearing decision and a party does not request review, the corrected decision becomes final twenty-one calendar days after the original hearing decision was mailed.

(3) If the ALJ denies a request for a corrected decision and the party still wants the hearing decision changed, the party must request review from the board of appeals.

(4) Requesting a corrected decision does not automatically extend the deadline to request review by BOA. A party may ask for more time to request review when needed.

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REQUESTS FOR REVIEW
NEW SECTION
WAC 388-02-0560
What is review?

(1) Review occurs when a party disagrees or wants a change in the hearing decision, other than correcting a clerical error.

(2) A party must request review from the BOA.

(3) The review judge considers the request, the hearing decision, and record, before deciding if the decision may be changed.

(4) Review does not include another hearing by the BOA.

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NEW SECTION
WAC 388-02-0565
What evidence does the review judge consider in a decision?

(1) The review judge, in most cases, only considers evidence given at the original hearing.

(2) The review judge may allow the parties to make oral argument on review.

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NEW SECTION
WAC 388-02-0570
Who may request review?

(1) Any party may request BOA to review a hearing decision.

(2) If more than one party requests review, each request must meet the deadlines in WAC 388-02-0580.

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NEW SECTION
WAC 388-02-0575
What must a party include in the review request?

A party must make the review request in writing and clearly identify the:

(1) Parts of the hearing decision with which the party disagrees; and

(2) Evidence supporting the party's position.

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NEW SECTION
WAC 388-02-0580
What is the deadline for requesting review?

(1) BOA must receive the written review request on or before the twenty-first calendar day after the hearing decision was mailed.

(2) A review judge may extend the deadline if a party:

(a) Asks for more time before the deadline expires; and

(b) Gives a good reason for more time.

(3) A review judge may accept a review request after the twenty-one calendar day deadline only if:

(a) The BOA receives the review request on or before the thirtieth calendar day after the deadline; and

(b) A party shows good reason for missing the deadline.

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NEW SECTION
WAC 388-02-0585
Where does a party send a review request?

(1) A party must send a review request to BOA at the address given in WAC 388-02-0030. A party should also send a copy of the review request to the other parties.

(2) After receiving a party's review request, BOA sends a copy to the other parties, OAH, and representatives giving them time to respond.

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NEW SECTION
WAC 388-02-0590
How does a party respond to the review request?

(1) A party does not have to respond to the review request. A response is optional.

(2) If a party responds, that party must send the response so that BOA receives it on or before the seventh business day after the date the review request was mailed to the party by BOA.

(3) The party must send a copy of the response to any other party or representative.

(4) If a party needs more time to respond, the party must contact BOA by the deadline in subsection (2) of this section and give a good reason.

(5) A review judge may accept and consider a party's response even if it is received after the deadline.

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NEW SECTION
WAC 388-02-0595
What happens after the response deadline?

(1) After the response deadline, the record on review is closed unless there is a good reason to keep it open.

(2) A review judge is assigned to the review after the record is closed. To find out which judge is assigned, call BOA.

(3) After the record is closed, the assigned review judge:

(a) Reviews the case; and

(b) Sends a review decision that either affirms, changes, dismisses or reverses the hearing decision; or

(c) Remands (returns) the case to OAH for further action.

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REVIEW JUDGES
NEW SECTION
WAC 388-02-0600
What is the authority of the review judge?

(1) A review judge has the same decision-making authority as an ALJ in the following cases, but must consider the ALJ's opportunity to observe the witnesses:

(a) Licensing, certification and related civil fines;

(b) Rate-making proceedings; and

(c) Parent address disclosure.

(2) In all other cases, a review judge may only change the hearing decision if:

(a) There are irregularities, including misconduct of a party or misconduct of the ALJ or abuse of discretion by the ALJ, that affected the fairness of the hearing;

(b) The findings of fact are not supported by substantial evidence based on the entire record;

(c) The decision includes errors of law;

(d) The decision needs to be clarified before the parties can implement it; or

(e) Findings of fact must be added because the ALJ failed to make an essential factual finding. The additional findings must be supported by substantial evidence in view of the entire record and must be consistent with the ALJ's findings that are supported by substantial evidence based on the entire record.

(3) Review judges have the authority to remand cases to the ALJ for further action.

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REQUESTS FOR RECONSIDERATION OF A REVIEW DECISION
NEW SECTION
WAC 388-02-0605
What if a party does not agree with a review decision?

(1) If a party does not agree with the review decision and wants it changed, the party must either:

(a) Ask the review judge to reconsider the decision; or

(b) Appeal the review decision to superior court which is judicial review according to WAC 388-02-0640.

(2) RCW 34.05.510 to 34.05.598 governs how to appeal a review decision to superior court.

(3) The review decision or the reconsideration decision is the final agency decision. If a party disagrees with that decision, the party must petition for judicial review to change it.

(4) The party may ask the court to stay or stop the DSHS action after filing the petition for judicial review.

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NEW SECTION
WAC 388-02-0610
What is reconsideration?

(1) Reconsideration is asking the review judge to reconsider the review decision because the party believes the review judge made a mistake.

(2) If the party asks the review judge to reconsider the review decision, the reconsideration process must be completed before you go to court.

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NEW SECTION
WAC 388-02-0615
What must a party include in the reconsideration request?

The party must make the request in writing and clearly state why the party wants the review judge to reconsider the review decision.

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NEW SECTION
WAC 388-02-0620
What is the deadline for requesting reconsideration?

(1) The BOA must receive a written reconsideration request on or before the tenth calendar day after the review decision was mailed.

(2) If a reconsideration request is received after the deadline, the deadline to ask for superior court review continues to run. The review judge will not reconsider the review decision.

(3) A review judge may extend the deadline if a party:

(a) Asks for more time before the deadline expires; and

(b) Gives a good reason for the extension.

(4) If a party does not request reconsideration or ask for an extension within the deadline, the review judge cannot reconsider the review decision and it becomes the final agency decision.

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NEW SECTION
WAC 388-02-0625
Where does a party send a reconsideration request?

(1) A party must send a written reconsideration request to BOA at the address in WAC 388-02-0030.

(2) After receiving a reconsideration request, BOA sends a copy to the other parties and representatives giving them time to respond.

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NEW SECTION
WAC 388-02-0630
How does a party respond to a reconsideration request?

(1) A party does not have to respond to a request. A response is optional.

(2) If a party responds, that party must send a response to BOA by or before the seventh business day after the date BOA mailed the request to the party.

(3) A party must send a copy of the response to any other party or representative.

(4) If a party needs more time to respond, the review judge may extend the deadline if the party gives a good reason in the deadline in subsection (2) of this section.

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NEW SECTION
WAC 388-02-0635
What happens after a party requests reconsideration?

(1) After BOA receives a reconsideration request, a review judge has twenty calendar days to send a reconsideration decision unless BOA sends notice allowing the review judge more time.

(2) After BOA receives a reconsideration request, the review judge must either:

(a) Write a reconsideration decision; or

(b) Send all parties an order denying the request.

(3) If the review judge does not send an order or notice granting more time within twenty days of receipt of the reconsideration request, the request is denied.

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REQUESTS FOR JUDICIAL REVIEW
NEW SECTION
WAC 388-02-0640
What is judicial review?

(1) Judicial review is the process of appealing a final hearing decision to a court.

(2) You may appeal a review decision by filing a written petition for judicial review that meets the requirements of RCW 34.05.546. DSHS may not request judicial review.

(3) You must consult RCW 34.05.510 to 34.05.598 for further details of the judicial review process.

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NEW SECTION
WAC 388-02-0645
When must you ask for judicial review?

(1) You must file your petition for judicial review with the superior court within thirty calendar days after BOA mails its final decision.

(2) Generally, you may file a petition for judicial review only after you have completed the administrative hearing process.

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NEW SECTION
WAC 388-02-0650
How do you serve your petition for judicial review?

(1) You must file and serve the petition for judicial review of a review decision within thirty days after the date it was mailed. You must file your petition for judicial review with the court. You must serve copies of your petition on DSHS, the office of the attorney general, and all other parties.

(2) To serve DSHS, you must deliver a copy of the petition to the secretary of DSHS or to BOA. You may hand deliver the petition or send it by mail that gives proof of receipt. The physical location of the secretary is:

DSHS Office of the Secretary

OB-2, 4th Floor

Mail Stop 45010

14th and Jefferson

Olympia, WA 98504-5010

The mailing address of the secretary is:

DSHS Office of the Secretary

P.O. Box 45010

Olympia, WA 98504-5010

The physical and mailing addresses for BOA are in WAC 388-02-0030.

(3) To serve the office of the attorney general and other parties, you may send a copy of the petition for judicial review by regular mail. You may send a petition to the address for the attorney of record to serve a party. You may serve the office of the attorney general by hand delivery to:

Office of the Attorney General

670 Woodland Square Loop S.E.

Lacey, WA 98503

The mailing address of the attorney general is:

Office of the Attorney General

P.O. Box 40124

Olympia WA 98504-0124

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Washington State Code Reviser's Office